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Coronavirus

Restaurant Owner Says Reopening Will Be Exciting, but Scary, Too

Eastside Grill’s new outdoor seating area

A new mural starts to take shape in Eastside Grill’s new outdoor seating area, as restaurants anticipate outdoor seating becoming much more prominent under state reopening guidelines.

There’s a little alleyway beside Eastside Grill in Northampton that used to hold a few dumpsters and parked cars, but not anymore — it’s been converted into an outdoor dining space. Last week, local artists painted a mural of the Big Easy there, to reflect the restaurant’s New Orleans influences.

Reopening the restaurant’s doors is certainly big. But nothing about it has been easy.

“When they shut us down, I’ve never been so anxious in my life,” owner Debra Flynn said. “This is my life. This is my employees’ life; they depend on this income to pay their bills. It was really scary at first, and it still is, actually, because we don’t know what’s going to happen once we open up. We won’t be making as much money as we once did, and there are so many restrictions. What’s going to happen when we open?”

For that outdoor seating area, Flynn has a bistro feel in mind, with eight high-top tables, spaced at least six feet apart, that seat two diners each; she doesn’t want more than two to a table at first. The space is adorned by large donated urns, and local landscaper Justin Pelis donated some plants.

“Everyone has really come together,” she said. “I have an incredible staff. The executive chef has refined the menu to keep costs down, yet it’s creative and inventive, and my general manager has been running back and forth to Restaurant Depot to get things we need.”

They’ve both been multi-tasking for some time; in fact, a team of only four, including Flynn, have been maintaining a robust curbside-pickup and delivery service five days a week since early in the shutdown.

“It was very popular,” she said, before drawing on some hyperbole. “We went from zero to a million in two seconds. We’ve never done anything like that, and that first week we opened, we were going very quickly.”

At first, the restaurant offered its fare through curbside pickup — the customer would pay over the phone, and the food would be handed through the passenger-side window — or delivery, to Northampton destinations initially, but that’s being expanded to Hatfield, Florence, Leeds, and Easthampton.

“I don’t know if delivery is ever going to go away,” she added. “For people who don’t want to sit at a table, they can take it home. Especially for the elderly, it’s been great.”

Flynn was able to access a Paycheck Protection Program (PPP) loan, but even that was fraught with anxiety.

“No one was telling us how it worked; nobody knew anything,” she said, adding that she was thrilled when the PPP guidelines were changed last week, extending their use by an additional eight weeks — which is critical for restaurants that had little or no work available for their teams over the first eight weeks of the loan.

She had the aforementioned skeleton crew making and delivering takeout, but what about the bartenders? “The bar is closed right now — sure, you can take out beer and wine in bottles, but you don’t need a bartender to grab a bottle. The bar won’t be open until phase 3 — maybe phase 4. No one’s allowed to set up a bar.”

When the governor says restaurants can open, Eastside’s hours will shift again, to Wednesday through Sunday, with a longer day on Sunday: noon to 8 p.m., marking the first time Eastside Grill has effectively served lunch.

“I cannot wait to reopen, even if it’s going to be 16 seats on one side of a small patio. It just generates people being out and being happy and being able to have a drink again — come in, have a cocktail, have an appetizer and dinner, and relax.”

It’s all part of being creative at a difficult time, one she knows isn’t exclusive to restaurateurs.

“Retailers are having it bad, too,” Flynn said. “With curbside pickup, nobody can try anything on because they can’t go into the building. So retailers have it as bad as restaurants do.”

Still, she noted, the restaurant industry is in many ways unique in the challenges it will face when it can once again serve guests.

“I cannot wait to reopen, even if it’s going to be 16 seats on one side of a small patio,” she said. “It just generates people being out and being happy and being able to have a drink again — come in, have a cocktail, have an appetizer and dinner, and relax.”

After all, dining out is an experience, one that can’t be replicated by takeout food, no matter how tasty.

“It’s the feeling of being served — that’s what it’s all about,” she told BusinessWest. “We were never a takeout business, and it took a while to make the food look nice. We’re used to putting it on a plate and making it look appetizing. Takeout is a whole different ballgame; people eat with their eyes, and a lot of times takeout doesn’t look as pretty.”

Flynn was quick to add, however, that the takeout ‘plating,’ if one could call it that, did begin to look nicer as the weeks wore on. Not as good as reopening the doors will look, when she and her team can begin serving up that New Orleans culinary spirit in person once again.

—Joseph Bednar

Coronavirus Cover Story

Baby Steps

After more than two months of a widespread economic shutdown, Massachusetts is opening its economy again — sort of. The plan, announced by Gov. Charlie Baker on May 18, allows some businesses to open their doors under tight health restrictions, while others — including restaurants, spas, and most retail — have to wait longer to invite the public inside. What’s got businesses frustrated is not knowing exactly when their turn will come — and the financial impact they continue to endure every week they have to wait.

Massachusetts is the 15th-most populous state in the U.S., yet, the day Gov. Charlie Baker released his economic reopening report, it had reported the fourth-most total COVID-19 cases in the country.

So, the reopening was never going to be a free-for-all.

“We were all very aware that, no matter what we went forward with, there will be more infection and more deaths,” said Easthampton Mayor Nicole LaChapelle, one of 17 members of the governor’s Reopening Advisory Board. “While the public-health metrics are numbers, statistics, they’re also people — they’re your neighbors, maybe your mother or father.

“People want to open,” she told BusinessWest, “but they don’t want to put people at risk — themselves, their customers, their parents. The compassion is remarkable.”

That’s why it was no surprise that Massachusetts is reopening slowly and cautiously. Last week, manufacturing facilities, construction sites, and places of worship were allowed to return under strict guidelines (more on those later), and on May 25, the list will expand to offices (except in Boston) and labs; hair salons, pet grooming, and car washes; retail, with remote fulfillment and curbside pickup only; beaches, parks, drive-in movies, and some athletic fields and courts; fishing, hunting, and boating; and outdoor gardens, zoos, reserves, and public installations.

That covers what Baker is calling phase 1, with three more reopening phases to follow. Conspicuously not on the phase-1 list? Restaurants, spas, daycare centers, in-store retail … it’s a long list. And, for many business leaders, a frustrating one.

Nancy Creed

Nancy Creed says businesses in phase 1 got the clarity they were seeking, but those in phase 2 are still waiting.

“There’s certainly an appreciation for public health, but there also needs to be some common sense, and I think it’s very hard to explain why it’s OK for 200 people to be in line at Home Depot, but a small, downtown store can’t have two or three people in it,” Rick Sullivan, president and CEO of the Economic Development Council of Western Massachusetts, told BusinessWest.

“Certainly everyone has to be smart,” he added, “but I think there needs to be more common sense brought into the reopening. I appreciate where the governor is — the balancing act — and I think the reopening committee did a great job with outreach, but there needs to be clear guidance and some common sense.”

Others were less diplomatic.

“While protecting public health is important and something we all support, it defies logic to declare that the opening of barbershops and hair salons is safe, while claiming opening small retail businesses is not,” Jon Hurst, president of the Retailers Assoc. of Massachusetts, said in a statement.

“The same is true for the opening of churches and large office buildings,” he went on. “Having two or three people in a retail shop is every bit as safe, if not safer, than the allowable businesses in phase 1. The Baker administration has consistently picked winners and losers during this crisis, and it is disappointing to see that trend continue in the reopening plan.”

As president of the Springfield Regional Chamber, Nancy Creed has been in touch with her members for almost three months now on the impact of the COVID-19 pandemic. She, like Sullivan, understands the delicate balance the state is walking.

“When we were part of the presentation to the advisory board, the last thing I said to them was, ‘our businesses are struggling, but they are surviving this. What they can’t survive is for it to happen again.”

“Certain sectors thought they’d be in phase 1, so there’s always that frustration,” she told BusinessWest. “When we were part of the presentation to the advisory board, the last thing I said to them was, ‘our businesses are struggling, but they are surviving this. What they can’t survive is for it to happen again. So we need to be smart about it and make sure we’re doing everything we can so the reopening is successful, and this doesn’t happen again.’”

She knows that’s not easy for many small businesses to hear, particularly ones with no revenue stream at all during this time.

“This is different for everyone, but businesses are muddling through it, pivoting, doing the things they need to do for basic economic survival,” she added. “But if it happens again, I don’t think we’ll survive the second round.”

Hence, baby steps, and a multi-phase reopening that offers real hope for many sectors, but continues to draw no small amount of criticism as well.

Guidance — and Lack Thereof

According to Baker’s plan, each phase of the reopening will be guided by public-health data that will be continually monitored and used to determine advancement to future phases. The goal of a phased plan is to methodically allow businesses, services, and activities to resume, while avoiding a resurgence of COVID-19 that could overwhelm the state’s healthcare system and erase the progress made so far.

Each phase will last a minimum of three weeks and could last longer before moving to the next phase. If public-health data trends are negative, specific industries, regions, or even the entire Commonwealth may need to return to an earlier phase.

Nicole LaChapelle

Nicole LaChapelle

“When talking to businesses and different groups and unions, the question was always, ‘what are the barriers right now, what are your biggest challenges, but more importantly, what do you need to see happen in order for your industry to open, and what is the timeline for that to happen for you?’”

In addition, success in earlier phases will refine criteria for future phases, including travel, gathering sizes, as well as additional openings in retail, restaurants, lodging, arts, entertainment, fitness centers, museums, youth sports, and other activities.

“Going in, the goals were, how do we safely and slowly open the Massachusetts economy?” LaChapelle said. “And that is directly tied to public-health metrics. When talking to businesses and different groups and unions, the question was always, ‘what are the barriers right now, what are your biggest challenges, but more importantly, what do you need to see happen in order for your industry to open, and what is the timeline for that to happen for you?’”

It was helpful, she explained, to seek input from myriad sectors and businesses — those deemed essential and never forced to shutter; those that had to pivot, such as retailers boosting their online presence and manufacturers shifting to making masks and face shields; and businesses that have been effectively sidelined.

“The board, at no point, even at the beginning, was like, ‘let’s get this thing going and roll it out immediately,’” she added, noting that she understands the need for companies to start ramping back up. “They may be a little disappointed, but they’ve been very understanding. There’s some education we have to do, but nobody is really upside-down about it.”

In order to reopen, businesses must develop a written COVID-19 control plan outlining how its workplace will prevent the spread of the virus. They must also create and display posters and signs describing rules for maintaining social distancing, hygiene protocols, as well as cleaning and disinfecting.

“I think there needs to be an appreciation for restaurants and small Main Street businesses that are not going to be able to just comply with the state’s protocols immediately.”

Sullivan appreciates the attention to public-health concerns, but said it offers little comfort for businesses stuck in an as-yet-undefined phase 2 — or beyond. While the reopening plan gives clear guidance for businesses in phase 1, those in phase 2 don’t even get a target date they can work toward or a set of protocols they can begin to develop. And that lack of clarity has led to frustration.

“I do think many businesses, especially smaller businesses, were kind of expecting more things to open up,” he said. “I think there needs to be an appreciation for restaurants and small Main Street businesses that are not going to be able to just comply with the state’s protocols immediately. They’ll need to plan, order some equipment, and spend some time reorganizing their business, because it’s going to be different than it was pre-COVID. And it’s not something they can do overnight. Many businesses are just looking at lead time — they want to open sooner than later, but they want lead time so they can be ready to go.”

Creed agreed.

“I think what businesses wanted, at least in the beginning, was some clarity about the guidelines, about the timelines, about the standards, about the checklists, all those things, so they can create their own plan — and that was achieved, at least for phase 1,” she explained. “But I am hearing the phase-2 people saying, ‘well, I wanted to be able to plan, but I don’t have enough guidance right now,’ so there’s some frustration.”

The Massachusetts Restaurant Assoc. said as much in a statement following the plan’s release.

“Obviously, every restaurateur is disappointed with the lack of a defined reopening date in today’s announcement,” it noted. “Massachusetts restaurants need their suppliers to have time to restock perishable inventory before it can be delivered to them. They need to notify employees about returning to work and conduct other due diligence to ensure restaurants can open effectively.”

Safety and Numbers

Across Massachusetts, the reopening plan sparked a spectrum of reactions, all acknowledging the competing health and economic interests in play, but expressing different levels of understanding and frustration — and often both.

“We realize that every employer in Massachusetts would love to hear that they can reopen immediately. But we also acknowledge that a phased reopening balances the need to restart the economy with the need to manage a public-health crisis that continues to claim 100 lives a day in Massachusetts,” John Regan, president and CEO of the Associated Industries of Massachusetts, noted in a statement.

Even as some businesses start to reopen and others plan to do so, the state Department of Public Health updated its stay-at-home advisory, replacing it with a new “Safer at Home” advisory, which instructs everyone to stay home unless they are headed to a newly opened facility or activity. It also advises those over age 65 and those with underlying health conditions to stay home, with the exception of trips required for healthcare, groceries, or that are otherwise absolutely necessary. All residents must continue to wear a face covering in public when social distancing is not possible, and individuals are advised to wash their hands frequently and be vigilant in monitoring for symptoms. Restrictions on gatherings of more than 10 people remain in effect.

The state also encourages working from home when possible, and Baker’s office released a list of 54 large companies — employing about 150,000 workers among them — that have issued statements extending work-from-home policies for the remainder of the spring, with numerous reporting intentions to extend into the summer and, in some cases, for the remainder of 2020.

“As MassMutual develops our plan to gradually return to the office, the health and safety of our employees is our top priority,” said Roger Crandall, chairman, president, and CEO of MassMutual, noting that his employees will return to the office no sooner than the beginning of September.

“We expect to come back in a slow, phased manner,” he added. “We will continue to monitor and reassess and will be factoring in a number of considerations — from federal, state, and local government and health officials’ guidance to a sustained reduction in cases in our operating locations, to broader available testing and our employees’ personal circumstances and comfort.”

Patrick Sullivan, Massachusetts President of People’s United Bank, is also promoting continued work from home where possible.

“People’s United Bank is assessing re-entry conditions and protocols to ensure the safety of our team members and our customers,” he said. “Our approach will balance the needs of employees with the needs of the business. As we have been successful in pivoting and adjusting to working from home, we will continue to encourage this behavior.”

Still, those are businesses that can at least operate in most aspects. Retail stores can’t so easily adjust — and have been devastated by the inability to invite shoppers into their stores.

“We are incredibly disappointed with how Governor Baker has treated retail businesses throughout the health and economic crisis. Massachusetts has been one of the most hostile states in the nation toward small retailers.”

“We are incredibly disappointed with how Governor Baker has treated retail businesses throughout the health and economic crisis. Massachusetts has been one of the most hostile states in the nation toward small retailers,” said Hurst, noting that Massachusetts stores are losing Memorial Day weekend at a time when other states have let them open up shop by now. “Retail businesses are ready and able to open safely now with a limited number of people in stores and for appointment shopping. By not allowing that until late June, many small, Main Street businesses will close forever.”

That’s not hyperbole for small businesses of many kinds. Matt Haskins, who operates the popular Matt’s Barber Shop in Amherst, said a recent grant from the Downtown Amherst Foundation has helped him stay afloat at a time when he doesn’t know when college business will return.

“Just five minutes before [receiving word of the grant], I was on a phone call discussing if Matt’s Barber Shop was going to make it or break it,” he told foundation officials. “The grant helps me think we’re going to make it.”

So will being able to open his doors again on May 25. And that’s all most business owners want right now — a target. Creed hears that, but at the same time, she’s encouraged by recent chamber polling suggesting the percentage of business owners who feel they’ll survive this crisis is rising.

“What that says to me is people are finding a way to make sure it doesn’t put them out of business,” she said, “which shows the resilience of the businesses we have here.”

Yes, they have resilience, in spades. Now, they want clarity — and some hard dates.

Joseph Bednar can be reached at [email protected]

Coronavirus Special Coverage

Q & A for the Reopening

By Ellen McKitterick and Mark Emrick

Employers are beginning to look at bringing employees back into the workplace and/or opening up their offices after being closed for six to eight weeks. Here is a sampling of the key questions that the HR Hotline staff at the Employers Assoc. of the NorthEast (EANE) is responding to.

Ellen McKitterick

Ellen McKitterick

Mark Emrick

Mark Emrick

How do I respond to an employee who says they are afraid to return to work? Each instance needs to be looked at on a case-by-case basis. If the employee has a valid reason that fits within an FMLA, ADA, or other reasonable accommodation, then be sure to start the interactive process and see if the request is reasonable. Otherwise, general fear is not a valid reason, and the employee would be voluntarily resigning.

How do I respond to an employee who says they don’t feel safe returning to the workplace? Assuming you have taken all required cleaning and disinfecting steps, you can respond: “we are operating a safe workplace. We are operating in accordance with state and local safety and health guidelines. There currently is no recognized health or safety hazard in our workplace.” Otherwise, general fear is not a valid reason, and the employee would be voluntarily resigning.

As we ramp up our operations, we need our workforce to return to the physical workplace. How do I respond to an employee’s request to continue working from home? Employers do not have to permit work from home if it does not fit their business needs; it is not up to the employee. That being said, in our current crisis, it is wise to allow working from home until the COVID-19 situation is under better control.

What if I can only bring my employees back part-time? They have been on unemployment during their furlough. How will this affect their ability to collect benefits? Employees who are collecting any benefit from unemployment insurance (UI) will continue to receive the additional $600 from the federal government at least through July 31. Partial unemployment may still qualify them for some UI; there is a partial-payment calculator at mass.gov to determine the possible benefit.

Can my employees continue to collect unemployment after I have asked them to come back, but they refuse? They can try, but they are not eligible if you have offered work. Employers should notify the Department of Unemployment Assistance of any employee refusing to return.

What do I do if my employee says they are making more money on unemployment than working for me and do not want to return right away? The employee needs to make a decision. Either they take the short-term gain of extra unemployment or the long-term gain of their job. This would be considered, in most cases, voluntary resignation. Their position may not be available when they decide to return to work.

What effects does our recent furlough have on my employees’ flexible spending account and dependent care accounts, the loss of contributions, and amount of time remaining for contributions in 2020? Employees may be allowed to make changes to some accounts, but it would require an amendment to your plan. IRS Notice 2020-29 may answer more questions.

Can I screen or test employees for symptoms of COVID-19 before they return to work? What screening methods should I use? Yes, during a pandemic you can take employees’ temperatures or ask business-related health questions such as “have you had symptoms, a fever over 100.4, or been in contact with someone diagnosed with COVID-19?: Remember that HIPAA and privacy laws apply.

Can I require older workers who are at high risk to continue to stay at home? No, you cannot exclude anyone in a protected class. If they voice a concern, then you should enter into the interactive process and see if a reasonable accommodation may apply.

Do I have to provide face masks for my employees? In Masachusetts, employees will be required to wear them at work, but it is to be determined who has to provide them. Neighboring states are all requiring the employer to provide needed personal protective equipment.

How do I respond to any employee who refuses to adhere to our social-distancing guidelines or wear a face covering in the office? Upon return to work, employers should put employees on notice of any new policy, any special protocols that may apply, and the personal protective equipment that is required. Engage in an interactive process to ascertain any concerns and determine if special conditions may apply before moving to discipline.

What should I do if my employees are complaining about coming back to work and the extra requirements? Employees are entitled to complain about working conditions to fellow employees. They should remain professional and follow all company policies, but they have the right to voice their opinion as long as they are not defamatory or causing disruptions.

Ellen McKitterick is EANE’s newest HR business partner. She advises member organizations on all aspects of employment law, including wage and hour issues, employment discrimination, employee benefits, leaves of absence, and unemployment, and trains EANE members and non-members on harassment prevention, basic employment concepts, employee medical and leave issues, and key management skills. Mark Emrick is a senior HR business partner at EANE with consulting responsibilities for all aspects of the HR function — recruiting, interviewing, hiring, training, benefits administration, compliance, performance management, coaching, development, corrective action, and terminations. He is also an experienced investigator for employee complaints and issues.

Law Special Coverage

Calling Back Workers

By Mary Jo Kennedy, Esq. and Sarah Willey, Esq.

Mary Jo Kennedy

Mary Jo Kennedy

Sarah Willey

Sarah Willey

As businesses prepare for reopening, many employers are summoning laid-off and furloughed employees and notifying employees who have been working remotely to return to the physical workplace.

Some employers are anticipating that their reopening may be a gradual process. Employers may do a ‘soft reopening’ in order to test workplace-safety measures such as social distancing. Some businesses may find, as a result of new safety procedures, that their workplace no longer requires certain positions. As a result, employers may not need the same number of employees or positions they had back in early March.

However, recalling only a portion of a workforce does have its own risks. Employers should carefully consider who and how many workers to recall and when to have them return.

Once notified, workers’ responses to the callback may vary. Some employees will welcome the return to work as a sign that things are returning to ‘normal,’ while others may have mixed feelings as they may want or need to stay home until the pandemic is over. Employers must consider how to best respond to workers’ requests.

How do you select which employees to call back when calling back fewer than all?

First, identify the types of positions and the number of employees needed for each position to be recalled. There may be certain skill sets or knowledge base needed in order to ramp up business after the shutdown.

“If they have medical concerns regarding returning to work, they should discuss those concerns with their supervisor or human-resources team and encourage them to stay home or arrange an alternate work assignment.”

Second, businesses should consider any policy or past practice regarding recalling employees as there may be a legitimate business reason for not following them. Employers should evaluate their business rationale for the selection process and document the criteria used for selecting one employee over another. Selection criteria may appear neutral on the surface, but the effect of its application may inadvertently result in the elimination of all or a majority of a group of employees in a class protected under discrimination laws. As a result, selection criteria may need to be reconsidered in order to avoid possible discrimination claims.

Can you decide not to recall employees because of a concern regarding their health?

Employers may have a genuine concern that a group of employees may be susceptible to greater harm if infected with COVID-19. For example, an employer may be concerned about possible exposure to COVID-19 of an older employee, employees with known medical conditions, or a pregnant employee. Any selection decision based on a person’s age, perceived disability, or pregnancy will expose the employer to discrimination claims.

Employers should not take a paternalistic view of deciding what is best for its employees. Rather, an employer should let employees know that, if they have medical concerns regarding returning to work, they should discuss those concerns with their supervisor or human-resources team and encourage them to stay home or arrange an alternate work assignment.

What if you laid off some and furloughed other employees?

Employers should consider calling back furloughed employees before rehiring laid-off employees. Employers may have given furloughed employees written assurances that they would be called back and may have retained them on health insurance, indicators that the employer intended to have the furloughed employees return to work.

How do you communicate the call back?

Employers should communicate the offer to return to work in writing. The communication should detail the start date, full-time or part-time status, position, hours, work schedules, wages, location, and conditions of the job.

What if a business calls back laid-off or furloughed employees and the response is that an employee has found other employment?

If an employer is told that a laid-off or furloughed employee is not returning to work because the individual has found employment elsewhere, the employer should document the reason for not returning and then move to the next employee on the recall list. If your business participated in the Paycheck Protection Program, documenting the reason for the refusal is critical in order to meet the loan-forgiveness requirements.

Also, if accrued but unused vacation time has not previously been paid, it should be paid out to the employee immediately, and if the employee was on the employer’s health insurance, a COBRA notice should be sent to the employee.

What if a business calls back a laid-off or furloughed employee who is unable to return to work because of a lack of childcare?

With schools and daycare facilities currently closed, employees with school-aged children may not have childcare options. Under the CARES Act, individuals who are unable to work (including telework) and are the primary caregiver for a child whose school or childcare facility is closed or whose childcare provider is unavailable due to COVID-19 can receive Pandemic Unemployment Assistance.

In addition, the employee may be eligible for paid extended family and medical leave under the Families First Coronavirus Response Act (FFCRA), under which eligible employees who are unable to work at their normal worksite or by means of telework are entitled to 12 weeks of paid extended family and medical leave (at two-thirds of their regular rate of pay) to care for a child whose school or place of care is closed (or childcare provider is unavailable) due to COVID-19-related reasons.

The FFCRA provides eligibility for paid extended family and medical leave to an employee who was laid off or otherwise terminated by the employer on or after March 1, 2020 and rehired or otherwise re-employed by the employer on or before Dec. 31, 2020, provided that the employee had been on the employer’s payroll for 30 or more of the 60 calendar days prior to the date the employee was laid off or otherwise terminated.

What if an employee has been working remotely during the shutdown and is unable to physically return to the worksite because of a lack of childcare?

While many remote employees have been able to work effectively at home during the forced shutdown, other remote employees may have struggled due their type of work not being conducive to telework. An employer may have valid concerns about an employee’s telework performance, such as the quality and quantity of the work, and should address with remote employees any performance issues.

An employer should discuss with an employee the possibility of flexible or reduced hours in a physical workplace or a modified remote-work schedule. If these options are not viable, an employee unable to return to their normal worksite may be eligible for unemployment.

What if an employee who has a medical condition increasing their risk of harm if exposed to COVID-19 wants to continue working remotely?

Addressing this issue requires consideration of federal and state reasonable-accommodation laws. If the medical diagnosis constitutes a disability under state or federal disability laws, the employee may be entitled to a reasonable accommodation. Given these unprecedented times, an employer may treat a medical condition that puts an individual at an increased risk of harm if exposed to COVID-19 as a disability. The employer should also explore with the employee other possible accommodations in addition to working remotely.

What if an employee can work but has a medical condition, adding increased risk of harm if exposed to COVID-19, but the employee’s job duties cannot be done remotely?

Dealing with employees whose work cannot be done remotely but are at an increased risk of harm if exposed to COVID-19 has unique concerns, and each situation should be considered on a case-by-case basis. If the employee was advised by a healthcare provider to self-quarantine due to concerns related to COVID-19 and the employer is subject to the FFCRA, the employee may be eligible for 80 hours of paid sick leave under FFCRA.

However, in this scenario, the FFCRA requires that the employee be “particularly vulnerable to COVID-19” and that following the advice of a healthcare provider to self-quarantine prevents the employee from being able to work, either at the employee’s workplace or by telework. Employers should obtain appropriate medical documentation substantiating the reasons for the self-quarantine.

In addition, if the medical diagnosis constitutes a serious medical condition or a disability, the employee may be entitled to either an unpaid leave of absence under the Family Medical Leave Act (if the employer has 50 or more employees and as such is a FMLA-covered employer) or a leave of absence as a reasonable accommodation for the disability.

What if an employee wants to continue to work remotely because the employee has an immediate family member who has a medical condition that puts that family member at increased risk of harm if exposed to COVID-19?

An eligible employee of a FMLA-covered employer can take a leave of absence to care for a family member with a serious medical condition. But if the family member does not need the employee’s care, the requirements for FMLA leave would not be met.

Under the American with Disabilities Act, employers are required to provide qualified disabled employees with a reasonable accommodation. When leave and accommodation laws do not apply, employees may ask employers to apply common decency to the situation and let them return to the physical workplace at a later time.

These are challenging issues for employers, who must balance the need to protect employees from COVID-19 with the need to maintain a workforce to keep the business open.

Employers should be cautious when navigating the various leave and disability laws in order to avoid lawsuits. Before denying employees’ leaves or other reasonable-accommodation requests, employers should engage with employees in order to assess the validity and reasonableness of the requests and should document the steps taken.

Mary Jo Kennedy is a partner and chair of the employment group at Bulkley Richardson, and Sarah Willey is counsel and member of the employment group at Bulkley Richardson.

Opinion

Editorial

If you watched Gov. Charlie Baker at his highly anticipated press conference to announce the state’s reopening plan last week, you may have been very disappointed.

The governor said he is trying to create a balance between keeping people safe and attempting to resurrect an economy that was seen by many as being one of the strongest in the country — although not anymore, thanks in part to the governor.

If balance is the goal, this plan — if we can really call it a plan — falls way short. It doesn’t move quickly or profoundly enough, and it leaves far too many of the small businesses that form the backbone of the state’s economy without any real chance to weather this storm.

In short, Gov. Baker’s plan creates winners and losers, haves and have-nots —  a situation where Walmart or Home Depot can open their doors to the public, but small, locally owned retailers are forced to keep theirs closed or operate curbside (if they can); a situation where a yoga school with eight students is put in the same category as a Planet Fitness with thousands of members.

As most everyone knows by now, the Baker administration’s reopening plan has four phases — named ‘start,’ ‘cautious,’ ‘vigilant,’ and ‘new normal.’ On May 18, a day every business owner had circled on his or her calendar, the governor gave some details on phase 1. Manufacturing and construction could restart immediately, with restrictions, as could places of worship, while hospitals and community health centers can now provide high-priority preventive care, pediatric care, and treatment for high-risk patients and conditions. On May 25, laboratory and life-sciences facilities can open; offices can reopen, except in Boston; and recreational-marijuana shops can reopen, as can salons, barber shops, and pet groomers. Retail facilities can open for remote fulfillment and curbside pickup.

Gov. Baker’s plan creates winners and losers, haves and have-nots —  a situation where Walmart or Home Depot can open their doors to the public, but small, locally owned retailers are forced to keep theirs closed or operate curbside.

But there are no details on phase 2, which includes restaurants and lodging, some healthcare facilities, and playgrounds and pools, or phase 3, which includes bars, casinos, gyms, and museums. All that’s known is that each phase will last at least three weeks and could be extended before moving on to the next stage, depending on factors like COVID rates, testing, and healthcare-system readiness.

For small businesses, this slow, plodding pace and lack of details makes it difficult, if not impossible, to plan and — more importantly — stay alive. The governor’s plan is anything but a plan, and it will spell the demise of many small businesses.

Rick Sullivan, president of the Economic Development Council of Western Massachusetts, put things in perspective when he told BusinessWest, “I think there needs to be an appreciation for restaurants and small Main Street businesses that are not going to be able to just comply with those protocols. They’ll need to plan, order equipment, and spend some time reorganizing their business, because it’s going to be different than it was pre-COVID. And it’s not something they can do overnight.”

The reopening panel could have recognized the needs of small businesses and implemented common-sense protocols to allow them to open. Instead, it chose not to. Clearly, there doesn’t seem to be an appreciation for just how endangered our state’s small businesses are, or what will become of our cities and towns if they are allowed to die on the vine.

These businesses need more than a belated plan with cleverly (or not-so-cleverly) named stages. They need a common-sense blueprint for effectively reopening an economy that’s been shut down for two tortuously long months.

The governor’s ‘plan’ is anything but that.