COVID-19 Resources for Employers

Guidance on Exemptions for Small Businesses from Federal Paid Leave under the Families First Coronavirus Response Act

The Families First Coronavirus Response Act requires that employers provide paid sick leave in certain circumstances related to the current COVID-19 pandemic; the law also requires that employers provide paid family leave to employees who must take leave because schools and childcare are unavailable due to COVID-19.  The sick leave may be for a number of reasons, including the lack of childcare.  The paid family leave is only for leave due to a lack of childcare.

The US Department of Labor will issue regulations exempting small businesses in certain circumstances from the requirements of providing the paid leave relating to childcare being unavailable.  The Department of Labor recently released guidance on what factors must be met to be exempt; they have not yet published the actual regulations.

The Small Business Exemption

A small business (which includes religious or nonprofit organizations) is exempt from the mandated paid sick or family leave requirements only if:

1. The employer has fewer than 50 employees; AND
2. The leave is requested because, due to COVID-19 related reasons, the child’s school or place of care is closed or the childcare provider is unavailable. (Note that the exemption from paid sick leave is ONLY for leave requested because childcare is unavailable; a small business is not exempt from paying an employee whose sick leave is due to the employee being quarantined, sick, or having to take care of another who is sick); AND
3. An authorized officer of the business has determined that:

• Providing paid sick or family leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;  OR
• The absence of the employee(s) requesting paid sick or family leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; OR
• There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick or family leave, and these labor or services are needed for the small business to operate at a minimal capacity.

Notices for Mass Layoffs During the Pandemic

California and the federal government each have WARN Acts (Worker Adjustment and Retraining Notification) that require notices be given to employees and certain government agencies when a layoff involves 50 or more employees in a 30-day period.  Employers should consult with counsel as there are numerous variables.  Below is a general summary.

California WARN

Generally, the California WARN Act applies to employers with 75 or more employees in specific circumstances. It requires that employers provide 60 days’ advance notice prior to a mass layoff, relocation, or termination. Failure to provide 60 days’ notice can result in severe liability – up to 60 days’ of back pay, plus benefits for all laid-off, relocated, or terminated employees, in addition to civil penalties.

On March 17, 2020, Governor Newsom suspended certain provisions of California’s WARN Act – those that impose liability and penalties. His executive order waives the 60-day notice requirement for the duration of the COVID-19 emergency, but it does not waive the notice requirement itself. The order applies where COVID-19-related business considerations result in mass layoffs, relocations, or terminations that were not reasonably foreseeable as of the time that notice would have been required.

To qualify for the waiver of the 60-day notice requirement under the order, employers must:

1. Give written notice to employees, the EDD, the local workforce investment board, and the chief elected official of the local city and county government;
2. Give as much notice as is “practicable,” along with a brief statement of the basis for reducing the 60-day notification period; and
3. For written notice given after March 17, 2020, include the following statement: “If you have lost your job or been laid off temporarily, you may be eligible for Unemployment Insurance (UI). More information on UI and other resources available for workers is available at labor.ca.gov/coronavirus2019.”

Federal WARN Act

The federal WARN act applies to employers of 100 or more and also requires 60 days’ notice of plant closings and mass layoffs. Unlike the state act, though, the federal law contains exceptions for “unforeseeable circumstances” and for furloughs under certain circumstances.  Triggering events vary. The notice requirements are much the same as California’s.  In either case, attorneys should be consulted.

Advice for Employers with Employees Working at Home

Having employees work at home raises a number of issues for employers and employees.  Review your telecommuting policies currently in place to ensure they work for the current situation.  For instance, many companies generally do not permit non-exempt to work from home, so you may need to supplement.  If you do not have a written policy, draft one and disseminate to all employees.

If an employee refuses to work from home for a reason that is not protected by law (e.g., telecommuting does not work with their reasonable accommodation), then the employee can be furloughed or terminated, though the employer should consult with legal counsel.

In managing employees working remotely, you should keep in mind:

Time Keeping and Breaks

• Non-exempt California employees should be reminded to take their rest and meal breaks. Employees should report their time on a daily basis (including clocking out for meal breaks) and confirm they took their breaks.
• If a non-exempt California employee is unable to take a 30-minute, duty-free meal period or one of their rest breaks, you should automatically add an extra hour of pay to their next paycheck (that is the amount of the penalty required to be paid by California law).
• Remind non-exempt employees to perform no over-time work without manager approval.
• Consider setting “office” hours during which employees are generally expected to be working and available by email/phone/virtual meeting software.
• Some employees may need to adjust their work hours to accommodate childcare needs during the COVID-19 crisis. Employees and employers may agree that work can be performed on a nontraditional and non-contiguous schedule, but this should be agreed to beforehand.  The employee is entitled to be paid for all hours reported as worked.  (See our posting regarding the new federal laws on childcare leave.)
• Exempt California employees must be paid for the entire week, even if they work only part of the week.

Home Offices

• Reimbursement of Expenses. Employees should be reimbursed for expenses associated with requirements for working from home, such as internet costs and phone.  These amounts are typically $50-$75/month.
• Injuries/Workers’ Comp. Employees should be reminded to maintain a safe work area.  Injuries incurred while working at home and in conjunction with the employee’s duties, should be reported immediately as they are still subject to workers’ comp.
• Confidential & Proprietary Information. Remind employees to protect confidential and proprietary information.  Such information should not be left in the open for others to see and IT procedures for securing electronic devices must be followed.

Advice for Employers Who Want to Take Employees’ Temperatures to Help Prevent the Spread of COVID-19

Generally, taking an employee’s temperature is considered a medical exam and is permitted only under certain, limited circumstances.  However, the government is relaxing the requirements relating to temperature taking if the purpose is to help protect against the spread of COVID-19.  If you choose to do this, remember it is important to protect employees’ privacy and not to single out employees because of their race, national origin, or age or the race, national origin, or age of people with whom they associate (such as a spouse or roommate).

• Be clear you are doing this only to determine if the employee may have COVID-19 (as opposed to determining whether the employee has some other medical impairment or disability).
• Use an infrared digital thermometer; it is less invasive and reduces the possibility of passing on the virus.
• Take the reading where others cannot see the process or results.
• Don’t let others know the results of the employee’s temperature reading or whether an employee was sent home immediately after a reading, which indicates that the employee had a temperature.

• Do not keep a record of the temperature readings.
• Review the CDC website regularly (cdc.gov) to make sure there have not been any changes in their recommendations about temperature readings.
• Remind employees who are taking temperature readings that a fever (a measured temperature of 100.4 F or greater) may be a symptom of COVID-19, but don’t assume the person is infected and they must treat an employee who has a fever professionally.
• You may ask employees to inform you if they test positive, but you cannot require them to tell you whether they tested and/or the results of any tests.
• Remember – not having a temperature is not determinative, so continue to take other recommended precautions.

Useful guidance may be found in U.S. OSHA’s “Guidance on Preparing Workplaces for COVID-19” (https://www.osha.gov/Publications/OSHA3990.pdf ) and, for certain specified employers, Cal OSHA’s Aerosol Transmissible Diseases standard (https://www.cdph.ca.gov/Programs/CCDPHP/DEODC/OHB/Pages/ATDStd.aspx).

Advice for Employers When an Employee Tests Positive for COVID-19 and for Helping Protect the Workforce

Below are points to remember if you have an employee who tests positive or has been personally ordered to quarantine, as well as advice about protecting your workforce.

If You Have an Employee Who Tests Positive/Has to Quarantine

• The law prohibits disclosure of confidential employee information, including that an employee is getting tested for or tested positive for COVID-19. However, employers can and should disclose a possible exposure in the workplace, but the information disclosed should be tailored to disclose only information that is necessary to protect against spread of the virus.  Do not give personal employee identification or medical condition.  You can disclose to others who may have been exposed, the when and how (e.g., they worked on an assembly line on Wednesday and someone present has been told to self-isolate), but not the specifics (e.g., you worked with Chris on Wednesday and Chris tested positive).
• The same concern for privacy applies to customers, clients, vendors and other third-parties.
• Consult with your local health official as to what the response should be in terms of co-workers quarantining, cleaning, etc.
• Remember to document exposure notifications and communications.
• If the employee believes they contracted the virus at work, find out why they believe this and notify your workers’ compensation carrier.

Protecting Employees:  You Can Ask about Symptoms, Send Home Symptomatic Employees, or Take Temperatures

• You may ask employees if they are experiencing COVID-19 symptoms, such as fever or chills and a cough or sore throat, but you must maintain as confidential information about an employee’s illness.
• You but may ask employees about specific risks of exposure, but you cannot single out employees because of their race or national origin, or because of their association (such as marriage, co-habitation, friendships) with someone based on race or national origin. For instance you can say, “We are concerned that you have been exposed with someone that has symptoms,” but you cannot say, “We are concerned that you have been exposed because you live with someone of Chinese ancestry”.
• If an employee exhibits symptoms of COVID-19 or any other communicable disease, you may ask the employee to leave work, but you will have to pay them in accordance with the sick leave laws. If they have exhausted their sick leave, they may be entitled to job protected, unpaid leave. See our posting regarding the new federal laws.
• Generally, taking an employee’s temperature is considered a medical exam. However, the government is relaxing the requirements relating to taking temperature if the purpose is to help protect against the spread of COVID-19. See our posting regarding advice for taking employees’ temperature to help prevent the spread of COVID-19.

Protecting Employees:  Develop Realistic Policies and Practices

If a business determines that it can operate in compliance with state and local orders, it should take reasonable steps to protect employees from the virus and develop an Infectious Disease Protocol.

Review Your Situation.  Employers should assess how the business is vulnerable to exposure to and/or spread of the virus. In developing an Infectious Disease Protocol, you should realistically consider how employees can perform job duties while maintaining social distancing and/or wearing protective gear, determine what kind of protective gear can be provided, consider different work flow or assignments in light of the protective gear and social distancing, allow telecommuting as much as possible, develop written guidelines, and provide training. Training may be as straightforward as a meeting (remember to maintain social distancing) or a memo informing employees of the company’s efforts and rules for protecting employees with some common sense pointers and reiterating what the CDC and state authorities have said.  Useful guidance may be found in U.S. OSHA’s “Guidance on Preparing Workplaces for COVID-19” and, for certain specified employers, CalOSHA’s Aerosol Transmissible Diseases standard.

Encourage Employees to Speak Up.  As with any other policy or procedure, employees should be encouraged to report suspected violations of safety rules and should be informed how to make such reports.

Check with Experts.  During this crisis, employers should rely on the latest public health recommendations from the Centers for Disease Control and Prevention (https://www.cdc.gov/) and their local and state health officials.  They should also check those websites regularly as guidelines and “best practices” have been evolving quickly in this pandemic.

“Protecting” Older Workers.  While authorities have said that older patients are more at risk if they contract the virus, employers cannot force older workers not to work or to stay home simply because of their age.

Following Safety Protocols/Protective Equipment.  If an employee refuses to properly wear/use protective equipment or to follow your Infectious Disease Protocol, the employee can be sent home or otherwise disciplined.

Advice for Employers Regarding the New Federal Sick Leave Laws

On March 18, 2020, President Trump signed the Families First Coronavirus Response Act (“FFCRA”). The law is in effect from April 1, 2020, until December 31, 2020, and requires that employers provide paid sick leave in certain circumstances related to the current COVID-19 pandemic.  The law also provides for employers to pay employees who must take leave relating to specific COVID-19 childcare situations.  This posting is in regard to the paid sick leave.  See our separate posting regarding the childcare leave laws.

The New Federal Paid Sick Leave Law

Employers Subject to the Law.  The law applies to all private and some public employers who have less than 500 employees.

Who Pays.  Employers pay, but they will be “reimbursed” for the paid wages by a credit against the tax employer’s pay roll taxes for each calendar quarter; the credit will be in an amount equal to 100 percent of the qualified sick leave wages paid by the employer.  “Qualified” means the employee is out for a reason specified in the law, which is generally not related to shelter-in-place orders.

Employee Qualifications.  This paid sick leave is available for immediate use, regardless of how long an employee has been employed.

Reason for Sick Leave.  An employee is entitled to this paid sick leave for any of six specified reasons, which fall generally into the following three categories.  Each of the reasons requires that the employer has work for the employee and that the employee is unable to perform the work because:

Quarantine or Isolation Order:  The employee is subject to a federal, state or local quarantine order, isolation order or similar restriction, including shelter-in-place orders in narrow circumstances.  The quarantine or isolation order must be specific to the employee; a general shelter-in-place order that limits the employer’s business is not sufficient.

Self-care:  The employee is (1) sick due to COVID-19, OR the employee is quarantined due to COVID-19 (quarantine can be imposed by government or by the employee’s medical provider), OR the employee is experiencing symptoms of COVID–19 and is seeking a medical diagnosis, and (2) is unable to work or telework for one of these reasons.

Care of Others:  Sick leave is also available if the employee is (1) caring for someone who is experiencing symptoms of COVID–19 and who is seeking a medical diagnosis OR the employee is caring for a minor child whose school or day care provider is unavailable because of COVID-19 and (2) is unable to work or telework for one of these reasons.

Examples:

1. Local shelter-in-place order reduces business needs so much that receptionist is told to stay at home because there is not enough work for him.  Employee is NOT entitled to federal paid sick leave.
2. Local shelter-in-place order exempts medical offices but receptionist has been told to stay at home by his doctor because he has been exposed to someone who tested positive for COVID-19.   Employee IS entitled to federal paid sick leave.
3. Local shelter-in-place order exempts medical offices but receptionist has been told to stay at home by his doctor because he has scarlet fever. Employee is NOT entitled to federal paid sick leave.
4. Local shelter-in-place order makes it where the employees of a specific business must work from home. Employee’s home is subject to a power outage; now the employee has work available, but cannot do it because the shelter-in-place order will not allow the employee to go someplace else to work remotely.  Employee IS entitled to federal paid sick leave.  (This example was provided by the US Department of Labor.)

Amount of Sick Leave.  Full-time employees are entitled to 80 hours of sick leave under this program.  Part-time employees receive the number of hours that they work on average in a two-week period. Leave under this federal law is in addition to other leave already provided by the employer and/or required by state or local law.

Pay Rate and Caps.  The reason for the leave determines the amount of pay the employee is entitled to receive.

Self-Care & Quarantine:  For leave because the employee is subject to a quarantine order or for self-care reasons, the employee is paid at the regular rate of pay or the minimum wage, whichever is greater.  Paid leave is capped at $511 per day and $5,110 in the aggregate for self-care or quarantine.

Care of Others:  For leave related to care of another, including childcare, the employee is paid at 2/3 of their regular rate of pay or minimum wage, whichever is greater. Paid leave is capped at $200 per day and $2,000 in the aggregate for care of another.

Other Available Leave.  It is the employee’s choice whether to use paid sick under this law before using other leave available to the employee; an employee cannot be required to use any existing sick leave or PTO for the purposes covered by this law.

Documentation.  Employees are required to provide employers with documentation stating (1) employee’s name; (2) dates for which leave is requested; (3) the qualifying reason for the leave; and (4) either an oral or written statement that the employee is unable to work because of the qualifying reason.

AND

When the qualifying reason is that the employee is subject to a quarantine or isolation order, the employee must provide the name of the government entity that issued the order.  When the qualifying reason is that the employee was advised by a health care provider to self-quarantine, the employee must provide the name of the health care provider. When the qualifying reason is that the employee is providing childcare, the employee must provide the name of the child; the name of the school, place of care or child care provider that is unavailable; and a representation that no other suitable person will be caring for the child during the period for which the employee is taking leave.

Employers may also ask employees to provide additional “material” that is needed in order for the employer to request the tax credits under the law.

Maintaining Documentation.  Employers must retain the above documentation for four years, including documentation of an employee’s oral statements.

Notice Required by Employers.  Employers are required to post notices developed by the US Department of Labor.  The notices are considered posted if the employer mails or emails the notices to employees.  The posters can be found here:  https://www.dol.gov/general/topics/posters.

No Discrimination/Retaliation.  Employers cannot retaliate against an employee who has taken or asked to take leave under the new law.

Existing Sick Leave Laws

The federal law is in addition to sick leave that is already mandated by California law or local ordinance.

Don’t Forget to Check Local Sick Leave Programs

Check your locality’s sick leave programs. For instance, the City of San Francisco has revised its sick leave ordinance in light of Covid-19 (see, https://sfgov.org/olse/san-francisco-paid-sick-leave-coronavirus).  San Francisco will also provide financial assistance to businesses and nonprofits to provide additional paid sick leave time to employees, over and above their existing policies. All San Francisco businesses will be eligible.

Advice for Employers Contemplating Layoffs, “Furloughs,” or Pay Reductions

With so much focus on new laws for paid sick leave, emergency leave for childcare, etc., it is easy to forget that California’s employee-friendly wage and hour laws are still in effect.  If you are contemplating laying off employees, reducing pay, and/or “furloughing” employees, please remember the following points.

Layoffs & Terminations

Treat It Like a Termination.  California generally considers a layoff a termination.  That means final paycheck rules are still in place (different rules apply to seasonal agricultural employees and other special industries):

• Final pay checks must be provided on the date of termination, not the next pay day.
• Final pay checks must include all amounts the employee earned for time worked to date and unused vacation/PTO, as well as reimbursement for expenses.
• If the employee missed a required duty-free meal break or any rest break required by law, the employee must be paid the 1-hour premium for each day a duty-free meal break was missed and each day a rest break was missed.
• Exempt employees are normally entitled to be paid for an entire week if they work only part of the week. However, during the termination week, an exempt employee may be paid for the days actually worked if they did not work a full week.
• Don’t forget notices and documentation regularly needed at termination. For example, COBRA, HIPP, life insurance, supplemental insurance, etc.
• If possible, communicate with each employee to confirm they have been paid all amounts they believe they are owed and that they received all breaks; ask if there are any unreported workplace injuries; and ask them to let you know about any potential wrongdoing (harassment, discrimination, whistleblowing). Document these conversations.

More than 50 Employees in 30 Days?  Some employers may be subject to state or federal WARN Act requirements; these are laws that require written notices be sent to employees, the EDD and local officials when an employer lays off 50 or more employees in a 30 day period. Failure to properly issue the notices exposes employers to significant penalties payable to employees and the government. These laws are technical and counsel should be consulted. Please see our overview of these notices.

Furloughs

“Furlough” generally means employees are placed on an unpaid leave of absence, but are still employed. Furloughed employees generally maintain health coverage (if your plan allows) and employers do not have to on-board the employees when they are called back. If employees are furloughed or laid off with a definite return-to-work date, the Labor Commissioner has taken the position that such employees are entitled to final pay if (1) their return-to-work date is beyond the end of the current pay period, OR (2) the furlough is for a period of more than 10 days.  If an employee is asked to return to work within the same pay period and the furlough is less than 10 days, then the employee does not need to be paid unused vacation/PTO.  Employees are generally eligible for unemployment benefits while on furlough.

Changed Pay or Hours

If you decide to cut pay or reduce employees’ hours to save costs, remember:

• Notice of pay reductions generally: There is no specific law in California stating that an employer must provide written notice before reducing pay.  However, the California Wage Theft Protection Act requires that employers give notice within seven days of making a change to a pay date or period.  Some believe that this notice requirement applies to any reduction in pay rates.  Wendel Rosen recommends that employers provide written notice at least seven days before lowering an employee’s rate of pay.
• Pay reductions with exempt employees: For employees to be exempt from overtime, their job duties and work situation must meet certain criteria and they must receive a minimum salary.  If you cut pay for exempt employees, they still must still receive the minimum salary requirements to continue to be exempt. In 2020, the minimum salary is $54,080 for employers with 26 or more employees and $49,920 if the employer has less than 26 employees. If exempt employees’ hours are reduced, their salary can be prorated, but the prorated amount must still be at least the required minimum.
• Bonuses for working during the pandemic may affect overtime rates: Some employers are providing employees with bonuses to induce them to stay or enhanced hourly rates for working during the pandemic.  If the employee is not exempt, any enhanced pay must be taken into account for overtime pay.  Bonuses may affect the overtime rate, depending on how and why they are given.

Advice for Complying with the New Expanded Family Leave Laws Caused by School and Childcare Closures

On March 18, 2020, President Trump signed the Families First Coronavirus Response Act (“FFCRA”). The law is in effect from April 1, 2020, until December 31, 2020, and requires that employers provide paid leave to employees who cannot work due to specific COVID-19 childcare situations.  The childcare law is called the “Expanded Family Medical Leave Law.”

The FFCRA law also requires paid sick leave for employees.  See our separate posting regarding the new paid sick leave law.  As explained below, the childcare and paid sick leave laws intersect.

The New Federal Paid Expanded Family Medical Leave Law

Amount of Leave.  The new law provides for 12 weeks of leave (10 paid) related to having to care for a minor child because school was closed or childcare is unavailable because of COVID-19.

If you are an employer who was subject to the FMLA before the emergency legislation (i.e., you have 50 or more employees), the 12 weeks is NOT in addition to the 12 weeks your employees are already allowed under the FMLA.  Also, the 12 weeks of emergency childcare leave is reduced by any other FMLA leave the employee has already used.

Employers Subject to the Law.  The emergency childcare law applies to all private and some public employers who have less than 500 employees.

Who Pays.  The first two weeks are not paid by the employer.  However, the employee will likely be able to have the first two weeks paid under the new sick leave law, described in another posting.

The remaining 10 weeks are paid by the employer, who will be “reimbursed” for the paid wages by a credit against the employer’s pay roll taxes for each calendar quarter; the credit will be in an amount equal to 100 percent of the qualified sick leave wages paid by the employer.  “Qualified” means the employee is out for the reason specified in the law.

Employee Qualifications.  Employees must have been employed by the employer for 30 days or more prior to the requested leave.

Reason for Sick Leave.  The leave is only for employees who are unable to work, including unable to telework, due to a need to care for a child because the child’s school or place of care has been closed or because the child care provider is unavailable due to a public health emergency related to COVID-19.  This leave is not available if the employee is unable to work for any other reason, such as a shelter-in-place order that shuts down a business or results in the employee’s position being eliminated.

Pay Rate and Caps.  After the initial 10 days of leave, the employer must pay the employee not less than 2/3 of their regular rate of pay or minimum wage, whichever is greater. Payment is capped at $200 per day and $10,000 total.

Other Available Leave.  Employees may elect to substitute any accrued paid vacation, PTO, or sick leave for unpaid leave.  Unlike “regular” FMLA, an employee cannot be required to use any existing sick leave or PTO for the purposes covered by this law.

Exceptions:  Employers with less than 50 employees may be exempt from these requirements if compliance would jeopardize the viability of the business as an on-going concern.  Also, certain healthcare providers and emergency responders are exempt. Employers must follow the DOL’s guidelines on this.

Job Protection:  Like “regular” FMLA, the new law provides for job protection for the employees taking it.  There is a limited exception for employers with less than 25 employees where the employee’s position no longer exists upon return to work due to economic conditions or other changes caused by the coronavirus emergency, and the employer has made reasonable efforts to restore the employee to an equivalent position.  Employers must follow the DOL’s guidelines on this.

Documentation.  Employees are required to provide employers with documentation stating (1) employee’s name; (2) dates for which leave is requested; (3) the name of the child; (4) the qualifying reason for the leave; (5) the name of the school, place of care or child care provider that has closed/is unavailable; (6) either an oral or written statement that the employee is unable to work because of the qualifying reason; and (7) a representation that no other suitable person will be caring for the child during the period for which the employee is taking leave.

Employers may also ask employees to provide additional “material” that is needed in order for the employer to request the tax credits under the law.

Maintaining Documentation.  Employers must retain the above documentation for four years, including documentation of an employee’s oral statements.

Notice Required by Employers.  Employers are required to post notices developed by the US Department of Labor.  The notices are considered posted if the employer mails or emails the notices to employees.  The posters can be found here:  https://www.dol.gov/general/topics/posters.

No Discrimination/Retaliation.  Employers cannot retaliate against an employee who has taken or asked to take leave under the new law.

Essential Businesses Can Limit Employee Commuting Stress With “Allow To Pass” Letters and Access Cards

In a prior blog post I discussed how food manufacturers can comply with shelter in place orders and still operate. Federal, state and local shelter in place orders have deemed protection of our food supply to be essential as the nation deals with the effects of the COVID-19 pandemic. Clients are reaching out to us asking for suggestions about how they can alleviate the concerns of their employees who must come in to help with food manufacturing, supply or distribution activities during this time.

While we are not currently aware of any incidences where workers have been stopped for a potential violation of a valid shelter in place order, news reports suggest that enforcement of shelter in place orders may become more of a priority as the United States now has the world’s highest number of reported coronavirus cases. In light of this development, one way essential businesses can help limit employee stress during this time is by supplying them with “allow to pass” letters and/or “access cards” that may be presented should the employee be stopped by legal authorities as they conduct travel to and/or from work.

Allow to pass letters can be created internally by staff, of course, but we recommend that you work with legal counsel to review your template form for accuracy and completeness.  Although there is no federal or state guidance regarding the content of any access card/allow to pass letter, we recommend the following minimum content to be presented on company letterhead:

• Name of Employer
• Description of business (ex. “food manufacturer”)
• Representation that the business is both: 1) an “Essential Business” or part of our nation’s “Critical Infrastructure” with citation to applicable order(s)/guidelines regarding the importance of food production and supply, and 2) complying with recommended safety directives for responsible operation
• Employee Job Title
• State that the employee, by virtue of his/her position within the company is absolutely necessary to vital role that the business plays regarding food production and/or supply
• Conclude with a respectful request to allow the employee to travel to and from work without hindrance

Beyond the allow to pass letter, businesses can also supply their employees with “access cards” that they can carry as extra security.  The access card is a shorthand analog to the allow to pass letter, with the express purpose of being carried by the employee as a backup resource – think of it as the employee’s COVID-19 business card.  Accordingly, it should be a much simpler format, such as the following:

---

I am an employee of <enter text>.

I am working as an employee for a company that is exempt from the shelter-in-place provisions as defined under “essential infrastructure” per this county’s directives. If you have any questions, please call my supervisor, <enter text>, at this phone #<enter contact number>.

---

This general format can and should be customized to adhere to each business and the appropriate exception designation from the pertinent shelter-in-place directive.  We also recommend that a company logo be placed on the card.  Further, we reiterate that businesses should contact legal counsel to ensure the accuracy of their allow to pass/access cards before they are issued to employees.

Wendel Rosen LLP is actively assisting our clients during this pressing time, drawing upon our full-service capabilities to assist individuals and businesses on all manner of COVID-19 issues.