On Monday, March 30, Governor Bill Lee enacted a safer at home Executive Order No. 22 (EO 22). This article will briefly touch on what that order means in Tennessee, and discuss several issues employers are currently facing under state and federal law as a result of the pandemic.
EO 22 amends and expounds on an earlier order, Executive Order No. 17 (EO 17) that had mandated no social gatherings of ten (10) or more people and also enacted provisions regarding restaurants, bars, and similar food and drink establishments — to switch to drive-thru, carry-out or delivery options. It also ordered gyms and fitness/exercise centers or substantially similar facilities to temporarily close and suspend in-person services. The effective date for EO No. 17 was through April 7.
EO 22 amended EO No. 17 with the order for all nonessential businesses throughout the state to close through April 14. Churches (religious or ceremonial functions), food and medicine stores, to go or delivery restaurants (restaurants for off premises consumption), laundry services, hardware stores, gas stations, and educational institutions are just a few of the businesses exempt from EO 22. A full list of exempt businesses can be found here:
Should your business potentially fit into one of these categories, but you are unsure, it is recommended you write an explanation for (a) why you believe your specific business activity is essential under the circumstances, and (b) how your business is implementing the social distancing and other health guidelines and necessary precautions recommended by the CDC. You may still be deemed non-essential, but at least you are ready to answer questions about why you should be considered otherwise. If you have questions about whether you are exempt, feel free to contact our office.
Additionally, if your business is to remain open, you will also want to be familiar with the recent EEOC publication from March 19, 2020 dealing with the ADA and Rehabilitation Act. The full publication can be found here:
This publication sets forth a few new regulations on what can be done in the workforce. For example, you can now take the temperature of an employee for the safety of your workforce. You may also ask an employee if they are experiencing symptoms of the pandemic virus. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA. You may also require an employee with symptoms of COVID-19 to leave the workplace, and you can require a fit for duty note from a medical professional, although the EEOC recommends employers allow a little flexibility in accepting how this note is provided. The EEOC also updated a prior article from 2009 dealing with pandemics in relation to the flu and H1N1, but modified it on March 21, 2020 to cover COVID-19. That article has additional helpful information on what is allowable for pandemics under the ADA or Rehabilitation Act. That article can be found at:
Lastly, as many of you know, President Trump on March 27, 2020 signed the Families First Coronavirus Response Act (FFCRA). This 880 page Act puts 2 trillion dollars back into the American economy in several ways. In addition to increasing the duration of unemployment benefits, one main way that the Act affects employers is by providing the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act. Under the Emergency Paid Sick Leave Act for leave taken between April 1 and December 31, 2020, an employee of an eligible employer can receive two weeks (up to 80 hours, or a prorated amount for part-time employees) of paid sick leave at 100 percent of such employee’s rate of pay (up to $511 per day and $5,110 in the aggregate) where the employee is unable to work (or telework) because the employee is quarantined or subject to an isolation order, advised by a health care provider to self-quarantine, or experiencing COVID-19 symptoms and seeking a medical diagnosis.
FFCRA further provides that an employee who cannot work (or telework) because of a need to care for a quarantined individual, an individual advised to self-quarantine by a health care provider, or a child whose school is closed or whose care provider is unavailable for reasons related to COVID-19 precautions, or other substantially similar conditions specified by the Secretary of Health and Human Services, can receive two weeks (up to 80 hours, or a prorated amount for part-time employees) of paid sick leave at a rate equal to two-thirds of the employee’s regular rate of pay (up to $200 per day and $2,000 in the aggregate). This sick leave is in addition to any annual sick leave the employer regularly provides to the employee.
Additionally, under the Emergency Family and Medical Leave Expansion Act, after an initial ten-day leave period, employees of eligible employers who are unable to work (or telework) because of a need for leave to care for a son or daughter under 18 years of age if such child’s school or place of care has been closed or care provider is unavailable because of COVID-19 precautions are also entitled to up to an additional ten weeks of paid family and medical leave at an amount equal to two-thirds of the employee’s regular rate of pay (not to exceed $200 per day and $10,000 in the aggregate). Keep in mind that there is an exemption from providing child care-related paid sick leave and expanded family and medical leave when providing such benefits would jeopardize the viability of my business. This exemption applies to small businesses with fewer than 50 employees, including religious and nonprofit organizations (See question #58 in the link below for more information). The full 59 questions and answers from the DOL regarding the FFCRA can be accessed through this link:
As you can see, the employment landscape created by this pandemic is fluid and ever changing, and will continue to evolve rapidly. Should you have any questions or need further information, do not hesitate to contact our offices.