COVID-19 Update for Employers March 26, 2020

The Senate passed a bill late last evening to deliver $2 trillion in government relief to a nation increasingly under lockdown, watching nervously as the twin threats of disease and economic ruin grow more dire. The legislation, which now must go to the House for approval, which is expected, is the biggest economic relief package in modern American history, dwarfing the $800 billion stimulus bill passed in 2008 during the financial crisis. The aim is to deliver critical financial support to businesses forced to shut their doors and relief to American families and hospitals reeling from the rapid spread of the disease and the resulting economic disruption. The key provisions for small employers and employees to know about is that businesses will be eligible for loans through the Small Business Administration, and the federal government will supply money to the states so that unemployment benefits will be increased both in the amount of benefits each week and the number of weeks available. Details about how this bill will impact Employers will be rolled out over the next several days.
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Late yesterday afternoon, the United States Department of Labor (DOL) released guidance on the new Families First Coronavirus Response Act (FFCRA). The guidance provides that the law takes effect on April 1, 2020, not as originally thought on April 2. This guidance is in the form of Fact Sheet for Employees, Fact Sheet for Employers, and Questions and Answers addresses critical questions, such as how an employer must count the number of their employees to determine coverage; how small businesses can obtain an exemption; how to count hours for part-time employees; and how to calculate the wages employees are entitled to under this law. The guidelines suggest that any business with fewer than 50 employees that plans to seek an exemption from the requirement of paying leave due to school closings should start documenting how the leave requirements would jeopardize the viability of the business as a going concern, but not send anything to the DOL at this time. The DOL guidance is a good first step, but far from conclusive, and it still leaves a lot of wiggle room on all sides; there’s still a lot of uncertainty. We expect the DOL to both continue clarifying the FFCRA through guidance and also supply regulations for complying with the law. We will keep you updated on these new developments, and if you have any questions regarding this new guidance and what it means for your business, please do not hesitate to call us at 404.844.4130.
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Both the state of Georgia and the city of Atlanta have implemented orders relating to the COVID-19 coronavirus outbreak that will impact businesses across the state.
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On March 23, Georgia Governor Brian Kemp issued an Executive Order in response to the COVID-19 coronavirus outbreak. The Order goes into effect at noon on March 24, 2020 and will be in place for 14 days. The Order is not a shelter-in-place order along the lines of what many other states have implemented in recent days. Instead, the Order has the following, more limited provisions:

Individuals with serious underlying health conditions to isolate, quarantine, or shelter in place. It is likely that most such individuals with increased vulnerability to the effects of COVID-19 were likely taking such precautions anyway.

Any business with a license to operate as a bar has to cease operations for the duration of the Order.

No business, establishment, corporation, non-profit corporation, or organization shall allow more than ten (10) persons to be gathered at a single location if such gathering requires persons to stand or to be seated within six (6) feet of any other person” and that the Department of Public Health can close an organization that does not comply.

The last restriction is the one of greatest interest to employers with operations in Georgia, as there are a host of instances in which a business requires more than 10 people to gather in a location and to be within six feet of one another. Moreover, Governor Kemp’s Order does not distinguish between essential and non-essential businesses, so the social distancing requirements would theoretically apply to every organization.
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Atlanta Mayor Keisha Lance Bottoms also issued an Order on March 23, this one a more conventional shelter-in-place order consistent with what many other states, cities, and counties have done. The key restriction in Mayor Lance Bottoms’ Order (which went into effect on March 24, 2020 at midnight) is as follows:

All individuals living in the territorial jurisdictional limits of the City of Atlanta are directed to stay at their place of residence; to permit persons subject to this order to leave their places of residence to provide or receive certain essential services or engage in certain essential activities and work for essential business and government services; … directing all businesses to cease non-essential operations at physical locations within the City of Atlanta; prohibiting all non-essential gatherings of any number of individuals.
Mayor Lance Bottoms’ Order requires that non-essential businesses in Atlanta “are required to cease all activities at facilities located therein except Minimum Basic Operations,” with essential businesses encouraged to stay open and comply with social distancing practices.
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Several other cities and local governments in Georgia as well as other states have issued stay-at-home orders. It mandates that any non-essential business switch to remote work and maintain social distancing. Even essential businesses must, to the greatest extent feasible, abide with social distancing. If you have questions about whether or not your business may qualify as essential, or need clarification on what this means for your business, please see USDOL: Straightforward Facts About Expanded Family And Medical Leave Rights and feel free to give us a call.
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In light of the seriousness of the pandemic, inquiries into an employee’s symptoms, even if disability-related, are considered justified by the EEOC as a “reasonable belief based on objective evidence that the severe form of pandemic influenza poses a direct threat.” We have a questionnaire that you can use to question your employees about their symptoms. Let us know if you need this form. Likewise, an Employer is allowed to take the temperature of any employee or anyone entering the facilities, and we can provide you with a sample Notice.
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In light of the seriousness of the pandemic, inquiries into an employee’s symptoms, even if disability-related, are considered justified by the EEOC as a “reasonable belief based on objective evidence that the severe form of pandemic influenza poses a direct threat.” We have a questionnaire that you can use to question your employees about their symptoms. Let us know if you need this form. Likewise, an Employer is allowed to take the temperature of any employee or anyone entering the facilities, and we can provide you with a sample Notice.
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We have developed a number of other forms that can be used by Employers to assist with unique circumstances that arise as a result of the pandemic. If an employee test positive for the Coronavirus, it is a good idea to see if the employee will allow you to provide his/her name when you announce to the rest of the workforce that a co-worker has tested positive. This will allow persons who spent time with the co-worker to know he/she should be tested too. You must get the consent in writing, using an Authorization to Reveal COVID-19 Diagnosis. We have developed a sample policy allowing employees to bring children to work. In addition we have a more general handout to give employees about the COVID-19 Virus.

In response to this crisis, Schwartz Rollins is offering interim, short-term engagements to small businesses (under 500 employees) that to date have not been our clients but need answers to legal questions arising out of the unprecedented changes impacting employers. To schedule a telephone appointment, please send your contact information (including business name for conflict purposes) to paralegal@GAemploymentlawyers.com. We’ll respond as quickly as possible.

Should you have any questions regarding this new rule, please contact one of our attorneys at 404.844.4130.