COVID-19 in the Workplace – Employer Recording and Reporting Requirements

Employers may have obligations to record and report cases of COVID-19 in the workplace.

Employment/Labor GroupEmployment/Labor Group

Recording Requirement

The Occupational Safety and Health Administration’s (OSHA) revised enforcement memorandum provides that under OSHA’s recordkeeping requirements, COVID-19 is a recordable illness, and thus employers are responsible for recording cases of COVID-19, if:

  1. The case is a confirmed case of COVID-19;
  2. The case is work-related*; and
  3. The case involves one or more general recording criteria*.

*An illness is work-related if an event or exposure in the work environment either causes or contributes to a condition or significantly aggravates a pre-existing illness. This is presumed for illnesses or injuries resulting from events or exposures occurring in the work environment unless one of the narrow exceptions in federal regulations apply.

*The general recording criteria includes conditions in which the illness or injury results in either: death, absences from work, restricted work or transfer to another position, medical treatment (beyond first aid), or loss of consciousness. If one of these conditions is not met, an employer must also consider a case to meet the general recording criteria if it involves a significant illness or injury diagnosed by a physician or other licensed health care professional.

There are three forms for employers to fill out under the recording requirement—this includes an injury and illness incident report (Form 301), a log (Form 300), and a summary (Form 300A).

Notably, OSHA has indicated that it is exercising enforcement discretion regarding work-relatedness in the context of employee COVID-19 illness. OSHA acknowledges that because of the “nature of the disease and ubiquity of community spread, in many instances it remains difficult to determine whether a COVID illness is work-related, especially when an employee has experienced potential exposure both in and out of the workplace.” Therefore, recording a COVID-19 illness does not necessarily mean that the employer violated an OSHA standard.

Additionally, pursuant to existing regulations, employers with 10 or less employees as well as employers in low hazard industries do not have recording obligations; instead, they are only required to report work-related COVID-19 illnesses that result in a fatality or an employee’s in-patient hospitalization, amputation, or loss of an eye. A complete list of the industries which are exempt from OSHA’s recording requirements can be found here.

Importantly, as stated above, even if an employer is exempt from OSHA’s recording requirements it must still determine work-relatedness for purposes of OSHA’s reporting requirements for any employees who received in-patient hospitalization treatment due to COVID-19.

Additional Guidance

In determining whether an employer has complied with this obligation and made a reasonable good faith determination of work-relatedness, Compliance Safety and Health Officers (CSHO) should apply the following considerations:

  • The reasonableness of the investigation. Employers are not required to undertake extensive medical inquiries. It is typically sufficient for an employer to use the following steps when learning of an employee’s COVID-19 illness: (1) ask the employee how he believes he contracted COVID-19; (2) ask the employee about his activities in and out of work that may have led to the COVID-19 illness (while being mindful of employee privacy); and (3) review the his work environment for potential exposure (taking into consideration other employees who contracted the illness in that environment).
  • The evidence available. Evidence of work-relatedness includes what was reasonably available to the employer at the time it made its work-relatedness determination. If the employer later learns additional information, then that information should be considered to determine whether the employer made a reasonable work-relatedness determination.
  • The evidence that COVID-19 was contracted at work. Certain evidence makes it more or less likely that the illness work-relatedness. For example:
    • More likely work-related when several cases develop among workers who work closely together and there is no other explanation.
    • More likely work-related when the employee contracted the illness after close contact with a customer or colleague who had a confirmed case of COVID-19 and there is no other explanation.
    • More likely work-related when an employee’s position involves close contact with members of the general public in a locality with ongoing community transmission and there is no other explanation.
    • Not likely work-related if employee is the only one to contract the illness in his work area and his position does not involve close contact with the general public, regardless of the rate of community spread.
    • Not likely work-related if, outside of the workplace, the employee was exposed to COVID-19.
    • CSHOs are also advised to give consideration to evidence of causation from medical providers, public health authorities, or the employee himself.

After the inquiry, if an employer cannot determine whether it is more likely than not that an exposure in the workplace played a causal role in a case of COVID-19, then the employer does not need to record that illness.

Reporting Requirements

Once employers determine whether COVID cases are work-related, employers must report any incidents of in-patient hospitalization treatment (as opposed to only observation or testing) which occurred within 24 hours of the exposure at work. See OSHA’s FAQ.

Employers may report COVID-19 related fatalities or in-patient hospitalization by calling the nearest OSHA office, calling the OSHA 24-hour hotline at 1-800-321-OSHA (6742), or by online submission. There may also be additional reporting requirements under state or local law.

For more information, contact one of our employment attorneys.

D.C. Enacts New Law Requiring Sexual Harassment Training by Employers of Tipped Employees (and Associated Reporting Requirements); Posting; and Notice to Employees of Employment Laws

Marc EngelMarc Engel

The District of Columbia enacted important legislation which mandates sexual harassment training for tipped employees (and associated harassment reporting requirements for employers with tipped employees). The new law also mandates postings in the workplace as well as notice to employees of various employment laws.

Overview

By way of background, the District of Columbia, in 2018 enacted the Tipped Wage Worker Fairness Amendment Act (the “Act”). The Act contained a provision which required that D.C. provide funding before the new law would take effect. This summer, D.C. repealed the funding restriction. As a result, the Act took effect on October 30, 2020. Key components of the Act are summarized below.

Employers of Tipped Employees Must Conduct Workplace Harassment Training

The Act requires that the D.C. government provide a sexual harassment training course for employees of businesses that have tipped employees (or a certified list of providers who may provide such training).

New employees who were hired before the law became effective must be trained within two years of the effective date, either online or in person. New employees who are hired after the new law became effective must receive the training within 90 days of hire unless the employee participated in training within the prior two years. Business operators, owners, and managers must be trained every two years. Like employees, business operators and owners may participate in the training either online or in person. Managers, on the other hand, must be trained in person. The law imposes upon employers a requirement to submit a certificate of training to the D.C. Office of Human Rights within 30 days after each employee, manager, owner or operator has completed the training.

Reporting Requirements for Training of Tipped Employees

Importantly, the Act imposes upon employers of tipped employees certain reporting requirements as follows:

  • File with the D.C. Office of Human Rights a copy of the employer’s policy outlining how employees can report incidences of sexual harassment concerns to management and to the D.C. government.
  • Distribute the sexual harassment policy to employees and post the policy in a conspicuous place accessible to all employees in or about the employer’s premises.
  • Document incidences of sexual harassment reported to management, including whether the reported harassment was by an owner, operator, managerial employee, or non-managerial employee.
  • Report to the D.C. Office of Human Rights on a yearly basis the number of sexual harassment allegations reported to management, and the total number of reported harassers who were owners, operators, managerial employees or non-managerial employees.

Reporting Requirements for Postings and for Information Which Must Be Provided to Employees

Within 120 days of the effective date (October 30, 2020) of the Act, the Mayor’s Office is required to create a poster which summarizes the rights of D.C. employees under numerous D.C. employment statutes, and also create a website which clearly and precisely describes the rights of employees under each of these employment laws. Thereafter, employers are required to print copies of the information posted by the District of Columbia on its website and organize it into a single source, such as a binder. Employers must make a copy of the binder available at every location where the summary poster is exhibited. Furthermore, the law requires employers to update the binder at least monthly to make sure that information is accurate, up-to-date, and matches the information that is on the website of the Mayor’s Office. Significantly, the D.C. government can impose upon employers a fine of $100.00 for each day that an employer fails to comply with the binder and posting requirements.

Takeaways

The Act has important consequences for employers in the District of Columbia, which can be found in the rest of the article on our website: https://www.lerchearly.com/news/dc-enacts-new-law-requiring-sexual-harassment-training-by-employers-of-tipped-employees.

For more information, contact Marc at mrengel@lerchearly.com.

Maryland Employers Must End the Inquiry into Applicant Wage History

They Also Must Provide Applicants with Wage Ranges for Open Positions

Julie ReddigJulie Reddig

The Maryland legislature has joined approximately 25 other state and local jurisdictions in restricting employer use of applicant pay history to determine future pay if the applicant is hired for a position. Instead, Maryland employers must set pay ranges for open positions based on job-specific criteria, without regard to an applicant’s prior earnings.

Specifically, Maryland employers are prohibited from requesting that applicants provide prior pay information. In addition, employers cannot rely on prior pay information voluntarily provided by job applicants except in one narrow exception: when the applicant seeks to negotiate a higher wage than the one offered by the employer.

In that situation, the employer can seek to confirm an applicant’s prior pay and also rely on wage history voluntarily provided by the applicant in order to support the employer making an offer higher than the one initially provided. However, the employer can only make this higher offer if it does not create an unlawful pay differential in violation of Maryland’s equal pay law.

There is no prohibition on an applicant voluntarily disclosing prior pay information. In addition, Maryland employers may still request that an applicant provide a desired pay range if hired for the position.

The law also requires that Maryland employers provide an applicant with the wage range for an open position when the applicant makes such a request.

The goal of this legislation is to ensure that compensation is based on the criteria that is important for the job, such as qualifications, market factors, and the job duties themselves, and end the pay disparities in wages paid to women and minorities.

As a result of this new law, Maryland employers should:

  • Review their job applications to ensure that the application does not request prior compensation information;
  • Train recruiters, managers, and others involved in the hiring process not to request prior pay information of applicants; and
  • Revise policies and procedures so that prior pay information is no longer disclosed when responding to requests for employment verification and reference checks either entirely or from employers in Maryland or one of the other jurisdictions prohibiting such an inquiry.

For more information, contact Julie at 301-961-6099 or jareddig@lerchearly.com.

Montgomery County Makes It Easier for Employees to Prove Unlawful Harassment

Marc EngelMarc Engel

Last month, the Montgomery County (Maryland) Council enacted amendments to the county’s anti-discrimination statute, which substantially lowers the standard for proving unlawful hostile harassment claims.

The amendment was signed into law on October 16, 2020 and takes effect on January 15, 2021. As discussed below, the amendments are likely to have a profound impact upon employers.

Overview

Sexual harassment is a form of sex discrimination prohibited by local, state, and federal law (Title VII). There are two types of unlawful harassment: (i) quid pro quo harassment (“you do this for me, and I do that for you”) and (ii) the more common type of harassment, known as hostile work environment.

Under current county, Maryland state, and federal law, in order to establish unlawful harassment, an employee must:

  • Establish that the conduct was unwelcome;
  • Was based upon the sex of the employee;
  • Was sufficiently “severe or pervasive” to alter the employee’s conditions of employment and to create an abusive work environment; and
  • The wrongdoing is imputable on a factual basis to the employer.

These requirements also apply to harassment claims based upon other unlawful factors, such as age and race.

The “severe or pervasive” prong has both a subjective and an objective component. With regard to the subjective component, an employee must show that she or he subjectively perceived, as a reasonable person would perceive, that the environment was hostile or abusive.

The conduct must also be objectively “severe or pervasive” and have a substantial effect on the terms or on the conditions of employment. The “severe or pervasive” requirement has proven challenging for employees to satisfy. The Fourth Circuit (where Maryland is located) has noted that boorish and crude behavior alone is not sufficiently “severe or pervasive” to be actionable under Title VII. As the Fourth Circuit explained: “While no one condones boorishness, there is a line between what can justifiably be called sexual harassment and what is merely crude behavior.”

Summary of Impact of New Legislation

The amendments to the Montgomery County anti-discrimination statute effectively replace the requirement that workplace conduct be sufficiently “severe or pervasive” to alter the working conditions of a reasonable person in the employee’s shoes, with the requirement that a reasonable person in the employee’s shoes “would consider the conduct to be more than a petty slight, trivial inconvenience, or minor annoyance.”

Although the law still contains an element of objective reasonableness, the employee is only required to establish that the conduct was more than a trivial inconvenience, minor annoyance or petty slight (and not that the conduct was sufficiently “severe or pervasive” to alter the working conditions of a reasonable person in the employee’s shoes) – which is a significantly lower standard than the one used under Maryland’s state anti-discrimination law and under Title VII.

Takeaways

To learn about steps employers should consider taking, read the rest of the article on our website: https://www.lerchearly.com/news/montgomery-county-makes-it-easier-for-employees-to-prove-unlawful-harassment.

For more information, contact Marc at 301-657-0184 or mrengel@lerchearly.com.

Virginia Ban on Non-Competes for “Low” Wage Employees

Josh SchmandJosh Schmand

Along with a number of other employer friendly laws passed this summer (Values Act and Wage Theft Law), Virginia has joined Maryland in prohibiting non-compete agreements with certain “low” wage workers.

What is a non-compete agreement?

Under the new law, a “covenant not to compete” or non-compete agreement is an agreement between an employer and employee that restrains, prohibits, or otherwise restricts an individual’s ability, following the termination of the individual’s employment, to compete with his/her former employer.

Which employees are considered “low” wage earners?

Who is a “low” wage earner is a bit of a moving target. The new law defines a “low-wage employee” as an employee whose average weekly earnings during the previous 52 weeks (or if an employee worked fewer than 52 weeks, the average weekly earnings for the number of weeks that the employee worked) are less than the average weekly wage in the Commonwealth as determined by the Virginia Employment Commission (VEC). The VEC may issue a new average weekly wage as frequently as every quarter; recently the VEC calculated the average wage as $1,204 per week or $62,608 per year. This means that a non-compete that was enforceable when entered could violate the new law when employers attempt to enforce it if the employee now qualifies as a “low” wage earner.

Interns, students, apprentices, or trainees are all considered “low” wage earners. As are independent contractors making an hourly rate less than the median hourly wage for all jobs over the past year in the Commonwealth, as determined by the Bureau of Labor Statistics of the U.S. Department of Labor, which was recently calculated at $20.30 per hour.

The new law does not cover employees that earn their salary predominantly through sales commissions, incentives, or bonuses.

What is prohibited by the new law?

Employers are prohibited from entering into, enforcing, and even threatening to enforce non-compete agreements with any “low” wage employee from July 1, 2020 going forward. This means that non-compete agreements that were entered into before July 1, 2020 are safe, but employers should consult counsel before enforcing or threatening to enforce those agreements.

By its terms, the new law does not apply to similar contracts, such as confidentiality or nondisclosure agreements, that protect employers’ trade secrets and confidential or proprietary information.

The new law leaves some grey area regarding when it applies to non-solicit agreements with customers, so employers should review client non-solicitation agreements with counsel to ensure compliance.

The new law does not address other types of employment restrictions, such as prohibitions against the solicitation of employees.

What are the penalties?

Employers are subject to a civil penalty of $10,000 for each violation of the new law, as well as private rights of action. In addition to lost compensation that can be awarded in a lawsuit, a “low” wage employee is entitled to recover reasonable costs, including attorneys’ fees, from employers that enter into, enforce, or threaten to enforce a non-compliant non-compete agreement.

Are there other requirements for employers?

Employers must post a copy or summary of this new law with its other required posters. Failure to comply with the posting requirements will subject employers to a written warning for the first violation, a penalty of up to $250 for a second violation, and a penalty of up to $1,000 for a third and each subsequent violation.

Is D.C. next?

D.C. has introduced a similar ban on non-competes for low wage employees.

For more information, contact Josh at 301-347-1273 or jcschmand@lerchearly.com.

Montgomery County Council Considers Legislation to Amend its Ban the Box Law

Michael NearyMichael Neary

A proposed Montgomery County bill greatly expands the County’s law prohibiting employers from asking about the criminal histories of job applicants until after an initial interview. In 2014, the County passed its “Ban the Box” law, which applies to employers with fifteen or more employees. Councilmember Will Jawando proposed an amendment reducing the employee threshold from fifteen to one on July 29, 2020. If passed, any employer in the County employing one individual would have to comply with the mandates of the Ban the Box law.

What Else is in the Proposed Bill?

The proposed legislation also would push the timeline back for when an employer could inquire about criminal histories from after a first interview until after the employer makes a conditional offer of employment. Further, as currently drafted, the bill would prohibit employers from asking about certain criminal offenses. Under the proposed legislation, employers could not ask about or, run a criminal records check to discover, whether the applicant has:

  1. Any arrest records that did not lead to a conviction;
  2. A first conviction for:
    a. Trespass;
    b. Disturbing the peace; or
    c. Second degree assault;
  3. A conviction for a misdemeanor if at least three years have passed since:
    a. The date of conviction; and
    b. The date any period of incarceration for the misdemeanor has ended;
  4. Juvenile records deemed confidential by statute; or
  5. Convictions that have been expunged.

The bill also prohibits employers from inquiring about these offenses when considering current employees for promotions.

The legislation delegates to the County Executive responsibility for preparing implementing regulations and regulations necessary to notify employees and employers of their rights and responsibilities under the legislation.

How Would the Bill Impact Employers?

If passed, the bill would significantly limit employer’s ability to investigate the criminal histories of applicants. The current Ban the Box law simply regulates the timeline for when employers can check the criminal histories of applicants. The public policy behind the current law is that employers may be willing to hire an applicant with a criminal history if the information is learned after the applicant has an opportunity to make a good impression during an initial interview. The proposed legislation, however, would ban inquiry into certain offenses preventing employers from considering them at all during the hiring process. The list of excluded offenses includes what some would consider more than simple nuisance crimes. For instance, a conviction for second-degree assault in Maryland can result from a defendant intentionally or recklessly causing physical contact or physical harm to another.

The legislation also could significantly slow down the hiring process. Employers would not discover an applicant’s criminal history until the end of the hiring process meaning employers might have to start the search again if the employer disqualifies a successful candidate because of a criminal record.

The Council held a public hearing on the bill on September 15, 2020 at which five speakers testified. The Council referred the bill to the Health & Human Services and Public Safety Committees for consideration. The council staff issued a work session staff report to the Committees on September 23, 2020. The next step is for the two Committees to make a recommendation to the full Council on the bill.

For more information, contact Michael at 301-657-0740 or mjneary@lerchearly.com.