Weekly Legislative Update May 4, 2020

Reopening a Business Without Opening Employer Liability

(Sesco)
 
Employers face a myriad of issues in thinking through whether and how to reopen for business, or how to thoughtfully phase out furloughs or teleworking models currently in place for ongoing enterprises. While federal, state, and local authorities haggle over who will decide which businesses can reopen and under what circumstances, employers should start preparing now. 

The Occupational Safety and Health Administration ("OSHA") and the Equal Employment Opportunity Commission ("EEOC") have both released updated guidance regarding COVID-19 and its effects on workplace practices.

OSHA Guidance

Federal law requires that all employees be given a workplace free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees. OSHA makes clear that the guidance they have released "is not a standard or a regulation, and it neither creates new legal obligations nor alters existing obligations."

OSHA identifies three classes of occupational exposure to COVID-19:
  • Low risk. Positions that do not require contact with people suspected of being infected with COVID-19 or close contact with co-workers and the general public. OSHA does not recommend these employers require employees to wear personal protective equipment (PPE), like face masks; rather, OSHA recommends that these employers just monitor public health communications and communicate such with employees as needed.
  • Medium risk. Positions that require frequent close contact with people who may be infected with COVID-19. These include jobs that have frequent contact with the general public, such as high population density work environments and high-volume retail settings. This category also includes employees who may have contact with travelers who return from international locations. OSHA recommends these employers require sick employees to wear face masks and develop strategies to minimize face-to-face contact; whether other forms of PPE (gloves, face shields, etc.) would be recommended is based on work tasks and types of exposure.
  • High risk. Positions with a high potential for exposure to COVID-19, mostly through medical, postmortem, or laboratory procedures. Jobs in this category include employees in hospitals, medical facilities, nursing homes, settings that handle human remains, and biomedical labs. OSHA recommends these employers require all employees wear face masks; whether other forms of PPE would be recommended is based on work tasks and types of exposure.
NOTE: State or local law may require employees to wear face masks or other PPE.

EEOC Guidance

The EEOC has released guidance that first affirms that all of the laws it enforces are still in full effect during COVID-19. However, the guidance explains that these laws should not interfere or prevent employers from following health guidelines issued by the Centers for Disease Control (CDC) or other public health authorities. The EEOC also warned employers that CDC and public health guidance will continue to change as the pandemic evolves, so employers should follow the most current information on maintaining workplace safety. 

The EEOC's guidance provides the following:
  • Health risk inquiries. Employers may ask employees if they or anyone in their home have tested positive for COVID-19, have taken a test for the virus, or have symptoms associated with COVID-19. Employers are not permitted, however, to ask these questions to teleworking employees. Employers may also require employees to have their temperatures taken before entering the employer's premises.
  • Confidentiality. All medical information gathered by employers about their employees regarding COVID-19, including information about symptoms and body temperatures, is confidential medical information. Therefore, this information should be stored separately in a medical file. An employer can tell a public health agency if it learns an employee has COVID-19. Employers must take measures to limit the dissemination of employee health information and limit the number of people who are told the name of an infected employee.
  • "High risk" employees. Employers may not exclude from work employees who have been identified as high risk, such as pregnant women, who neither have symptoms of COVID-19 nor have tested positive for COVID-19.
  • Hiring and Onboarding. Employers can screen job applicants for symptoms of COVID-19 after making a conditional offer of employment, as long as it does so for all applicants for that position. Employers can also delay the start date if an applicant has COVID-19 or withdraw the job offer if the employer needs the applicant to start immediately.
  • Reasonable Accommodations and PPE. While an employer can always require its employees to wear PPE, employers should be prepared to make reasonable accommodations based on disabilities, such as breathing conditions or allergies to certain materials. Religious accommodations can also be raised by employees based on the requirement to wear PPE.

Training and Employment Notice (TEN) Update TEN 23-19 - New Expiration Date for Work Opportunity Tax Credit Forms Under the Paperwork Reduction Act

 
TEN 23-19 -- New Expiration Date for Work Opportunity Tax Credit Forms Under the Paperwork Reduction Act has been added to the ETA Advisory database and is now available at https://wdr.doleta.gov/directives/corr_doc.cfm?DOCN=8806

TIA Signs onto Group Credit Sales Letter

 
Dear Speaker Pelosi, Leader McConnell, Leader Schumer, and Leader McCarthy, 

Thank you for your leadership in swiftly working to respond to the economic damage caused by the Coronavirus crisis through several pieces of legislation over the last several weeks. 

As Congress continues to consider legislation in response to the crisis, we write to respectfully encourage you to prioritize legislation that would take into account the suddenly high volume of customer defaults on credit sales. Numerous industries often extend significant inventory sales or manufacturing inputs to customers on credit by convention, custom, and sometimes even regulation. 

Many customers buy inventory or input materials on short-term credit terms, particularly business in the industries hit hardest by the COVID-19 crisis, like restaurants, retailers, and venues for sport, events, and entertainment. Current law does not contemplate the abrupt and unexpected halt in a high volume of payments for these credit sales all at once. 

Over a broader period of time, section 166 of the tax code addresses this situation by allowing a deduction for wholly worthless debts or "bad debts." However, the terms and timing of this provision allow it to be used only under certain circumstances - businesses must meet a nuanced facts-and-circumstances test that may take many years and in some cases may not be satisfied until a customer in default has reached a bankruptcy settlement. 

Given the current public health and economic crisis, the value of this provision is severely limited in the event of the sort of sudden shock businesses face right now. Businesses selling inventory goods and input materials on credit are experiencing mounting defaults, and they will continue to experience defaults for months to come. 
The undersigned businesses respectfully request that Congress pass a temporary legislative modification to account for this unforeseen event by loosening the facts-and-circumstances test on bad debt business deductions and accelerating these deductions into the present taxable year.

Sincerely,
 
The Tire Industry Association and others

TIA Signs onto USPS Letter

 
Dear Congressional Leaders,

The undersigned companies, trade associations and consumer advocacy organizations believe it is imperative to save the United States Postal Service. We thank you all for your leadership as the nation confronts this pandemic, and urge you to provide enough funding to enable USPS to survive and serve its customers, the American people, during this exceptionally trying time. 

We, along with the postal-reliant industry that generates $1.6 trillion in sales and employs 7.3 million workers, have long supported a self-sufficient Postal Service. But no business entity can withstand a 50% or more externally-imposed drop in business and revenues, as USPS projects due to COVID-19, and long survive. That is why emergency funding must be provided now. 

The American people have been reminded during this pandemic of just how fundamental to American life the Postal Service still is. USPS is delivering prescriptions, household and business staples, groceries, Personal Protective Equipment, greeting cards and personal correspondence to bridge social distancing, Paycheck Protection Program, Social Security and tax refund checks, CDC advice cards on keeping oneself and family safe, and newspapers and magazines still vital to informing the American people. It is enabling a new wave of businesses along with the e-commerce sector to survive the pandemic through remote order and fulfillment. 

Postal Service delivery is essential. And it is of particularly acute need in rural areas of the country, where there are no alternatives, and often not even broadband. USPS is a lifeline there and elsewhere throughout the country during these challenging times. 

As to how much is needed, we defer to the experts, the bipartisan Postal Service Board of Governors appointed by the President, and our leaders in Congress. While substantial sums are needed, they amount to a small part of the emergency funds Congress has provided and will continue to provide, including to sustain small businesses, their employees and the economy. 

The Postal Service is the backbone of small business in America, and must endure. 

The American people, 91% of whom approve of USPS1, often raise a commotion if a single Post Office is to be closed. Closing the entire system or imposing a major reduction in service during this time of need would magnify that reaction substantially. 

We again strongly urge you to save the Postal Service and preserve a fundamental lifeline to millions of Americans. 

Thank you. 

Sincerely,

The Tire Industry Association and others