Back in Business:  Legal Challenges as Restaurant Employees Return to Work

As many states and localities prepare to reopen restaurants and other businesses that were shuttered in response to the COVID-19 pandemic, employers face a minefield of potential legal pitfalls.  Now is the time for restaurant employers to develop a plan to address both the legal and practical considerations for safely returning employees to work. 

Recalling Furloughed or Laid Off Workers

Given phased reopening recommendations, social distancing and limitations on the numbers of customers inside businesses, restaurants will likely be returning less than their entire workforce and will have to determine which furloughed or laid off employees to return to work first.  Employers need to ensure that they have legitimate, business-related reasons for asking certain employees to come back while leaving others laid off or on furlough, and they should clearly document those reasons to ensure consistency.  Recalling only younger workers but not older employees, pregnant employees or employees with underlying health conditions who may be more at risk of developing health complications from COVID-19 may lead to discrimination claims. 

What if employees refuse to work because of fear of exposure to COVID-19?  In many states, furloughed workers who are recalled and refuse to return to work without good cause will be disqualified from receiving unemployment benefits.  Several states, including Missouri, Ohio, Texas and South Carolina, are encouraging employers to report employees who refuse to return to work so that the state can limit improper claims for unemployment compensation benefits.  According to OSHA, employees may only refuse to work because of COVID-related fears if they have a good faith belief that they are in “imminent danger” and have no reasonable alternative but to avoid the workplace. The threat must be imminent or immediate, meaning the employee must believe that death or serious physical harm could occur within a short time before OSHA could investigate. If an employee reasonably believes there is a danger of being infected with COVID-19, for example because of a confirmed or suspected case of COVID-19 in the workplace, the employee cannot be disciplined or discharged by the employer for refusing to come to work. 

Finally, it is important to remember that the Families First Coronavirus Response Act (“FFCRA”) remains in effect until December 31, 2020, meaning employees are still entitled to up to 80 hours of paid sick leave when the employee is unable to work for certain reasons related to COVID-19, including being advised by a health care provider to self-quarantine or experiencing symptoms of COVID-19 and seeking a medical diagnosis.  In addition, many schools and childcare facilities remain closed and employees, including rehired workers who were on the payroll for 30 or more of the 60 calendar days prior to a layoff, are entitled to up to 12 weeks of paid family leave when the employee is unable to work because the employee must care for a child under 18 whose school or daycare is closed for reasons related to COVID-19. This week the Department of Labor issued guidance clarifying that paid family leave is not available if the child’s school or daycare is closed for summer vacation or any other reason that is not related to COVID-19.  However, the employee may still take leave if his or her child’s care provider during the summer (i.e. a camp or other summer program) is closed or unavailable due to COVID-19.  As of April 1, employers covered by the FFCRA are required to post a notice of the act’s requirements in a conspicuous place on their premises.  The FFCRA contains anti-retaliation provisions so employers should take care not to base a decision on which employees to return to work on knowledge of an employee’s request for or potential need to use FFCRA leave.   

Screening Employees and Compliance with the Americans with Disabilities Act

With many return-to-work guidelines recommending screening employees for symptoms of COVID-19, employers must take care to comply with requirements under the Americans with Disabilities Act (“ADA”) and other laws.  The Equal Employment Opportunity Commission (“EEOC”), who enforces the ADA, has recently updated its guidance on this issue to confirm that employers may require that employees be tested for COVID-19 as a condition of returning to work because COVID-19 poses a “direct threat” to the health of others.  The EEOC has cautioned, however, that employers must ensure that any tests used are accurate and reliable.  In addition to testing, employers may also take the temperature of employees to determine if they have a fever and may ask employees if they are experiencing symptoms of COVID-19. 

Employers who choose to screen employees should have a clear and consistent guidelines for:

(1) the screening procedures that will be used such as touchless thermometers, (2) the criteria for failing the screening procedure (i.e. temperature over 100.4),

(2) how to respond if an employee refuses to be screened, (

3) how to respond if an employee does not pass the screen (i.e. sending the employee home).

 If a designated employee will be performing the temperature check or other screening, the employer should ensure that employee has been properly trained and has the appropriate personal protective equipment.  If the employer chooses to use medical questionnaires to assess whether an employee is experiencing COVID-19 symptoms or poses an exposure risk though contact with another infected individual, travel or otherwise, the questions should be narrowly focused to gather only information that is relevant to assessing the COVID-19 threat.

Access to medical information should generally be limited to only human resources or management personnel with a need to know.  Medical information including screening and test results must be kept confidential and must be stored separately from the employee’s personnel file.  OSHA and the CDC recently issued joint guidance making clear that if an employee is confirmed to have COVID-19, employers should inform anyone the employee may have come into contact with of their possible exposure to COVID-19 in the workplace, but should maintain confidentiality under the ADA and should not disclose the name of the employee with COVID-19 to other employees.  Finally, employers in certain jurisdictions, including California, should also ensure that they are complying with applicable data privacy statutes that may impose additional requirements for providing written notices to employees and maintaining the security of this information.

Reasonable Accommodations under ADA

Employers should be prepared for employees with “high risk” medical conditions to ask about reasonable accommodations under the ADA. Although employers do not have to provide a reasonable accommodation to an employee who does not request it, employers may understandably worry for employees with underlying conditions identified by the CDC as increasing the employee’s risk for severe COVID-19 illness. While the EEOC has cautioned that an employer may not exclude from the workplace or take any adverse action against an employee merely because the employee has a disability identified by the CDC as potentially putting the employee at higher COVID-19 risk, the EEOC has recently clarified that employers may exclude the employee from the workplace if the employee’s disability poses a “direct threat” to the employee’s health that cannot be eliminated or reduced by reasonable accommodation.

The “direct threat” requirement is a high standard under which an employer must show that the employee has a disability that poses a “significant risk of substantial harm” to his or her own health.  An employee’s disability does not pose a direct threat simply because it is listed on the CDC’s high risk list. Instead, the direct threat determination must be made after an individualized assessment based on a reasonable medical judgment about the particular employee’s disability – not the disability in general – using the most current medical knowledge and/or on the best available objective evidence. The employer should consider the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm. 

Applied to COVID-19, the “direct threat” analysis may require the employer to consider the severity of the COVID-19 outbreak in a particular area. The analysis may also directly consider the employee’s own health (such as whether the employee’s disability is well-controlled) and the likelihood that an employee will be exposed to COVID-19 at the worksite. The employer should evaluate its own preventative workplace measures, such as masks or social distancing. Presumably, this would include an analysis of preventative measures restaurants may be required to take under state or local law as stay-at-home orders are lifted.

Even if the employer determines that the employee’s disability poses a direct threat, the employer still cannot exclude the employee or take adverse action against the employee unless there is no reasonable accommodation, absent undue hardship, that the employer can make.  Employers must consider reasonable accommodations that would eliminate or reduce the risk so that it would be safe for the employee to return to work but that still allow the employee to perform the essential functions of the job. Examples of reasonable accommodations include additional or enhanced protective equipment; enhanced protective measures like separation barriers; elimination or substitution of certain marginal functions (but not essential functions); and temporary schedule modifications. 

Wage and Hour Issues

Many restaurants may reopen on a limited basis with reduced capacity and/or hours of operation due to state and location regulations or decreased customer demand.  Accordingly, employees may be called upon to work fewer hours or perform different job duties.  With a few exceptions, salaried employees who are exempt from the Fair Labor Standards Act’s overtime provisions must be paid their full salary for any week in which the employee performs any work, regardless of the number of days or hours worked. Although exempt employees do not need to be paid for any workweek in which they perform no work, if the employer makes ongoing deductions from an employee’s salary because of reduced business operations then the employee will generally lose the exemption.  Another potential concern is that managers who have previously met the requirements of the so-called executive exemption from overtime may be called upon to perform primarily non-managerial work in light of reduced staffing and endanger their exempt status.  Employers should monitor these situations carefully to ensure employees are properly classified and compensated under the FLSA. 

Finally, restaurants who implement temperature checks or other screening measures before employees begin work must consider whether to compensate employees for the time spent on such activities.  Under the FLSA, employers must pay employees for “principal activities or activities which employees are employed to perform,” which include all activities that are “an integral and indispensable part of the employee’s principal activities.” An activity is integral and indispensable, and thus compensable under the FLSA, if it is “an intrinsic element of the principal activities and one that the employee must do in order to perform their principal activities.”  Activities that are merely “preliminary” and “postliminary” to principal activities do not have to be compensated under the FLSA.  To date, the federal Department of Labor has not offered any guidance on this issue in the context of COVID-19, and for that reason the conservative approach is to pay employees for time spent waiting and having their temperatures checked.  However, because this is a highly fact-specific inquiry, employers should consult with counsel to determine best practices. 

Addressing Workplace Safety Concerns

Businesses should not only follow guidance from the CDC and OSHA for specific safe workplace procedures when reopening, but they should also ensure that they are closely adhering to operating requirements set by state and local governments and health departments. 

OSHA requires employers to ensure their workplaces are “free from recognized hazards that are causing or are likely to cause death or serious physical harm,” and has advised that this general duty applies to COVID-19 related hazards in the workplace.  Although OSHA has recently indicated that it will focus on employer’s “good faith” efforts in complying with applicable safety and health standards during the pandemic, employers must take infection control measures and document those practices.  In addition to isolating sick employees, frequent handwashing and cleaning of high touch areas, some recommended safety measures may also include:

• Minimizing handling cash, credit cards, and mobile devices when possible;
• Requiring employees to wear gloves and/or masks or other appropriate face coverings;
• Limiting employee sharing of work tools;
• Staggering shifts to assist with social distancing; and, 
• Having an action plan in place on how to respond if a worker is diagnosed with COVID-19. 

CDC as well as state and local mandates may require employee use of Personal Protective Equipment (“PPE”), such as gloves and masks, in order for restaurants to reopen.  When such PPE is required, employers should either provide such equipment for employees or reimburse employees if they must purchase their own.  Wage and hour laws generally prohibit requiring employees to purchase such equipment if the cost would effectively reduce their pay below the minimum wage or cut into overtime pay.  PPE guidelines vary by jurisdiction, so employers should review state and local requirements carefully.

Employers should document their safety plan and train all employees on the safety measures in place to protect against further spread of the virus.  Ensuring all employees are aware of and understand the reasons these safety measures are being taken will reduce the likelihood that employees will complain to OSHA or others regarding perceived risk of exposure in the workplace.  If employees do raise complaints about unsafe working conditions, those complaints should be taken seriously and investigated.  OSHA prohibits any retaliation against employees who make good faith complaints regarding unsafe work conditions.  Likewise, the National Labor Relations Act also protects employees who engage in “protected concerted activity for mutual aid and protection,” so employees, even those who are non-unionized, who refuse to work based on a reasonable fear of being infected with COVID-19 will also be protected from discipline or discharge for raising concerns regarding work conditions with their employer. 

As the legal landscape continues to evolve and new questions arise, employers should work closely with legal counsel to ensure compliance with federal and state employment laws as well as with federal, state, and local guidelines for safely reopening.