Indiana Businesses: Are You Ready? · Shelley M. Jackson is a member of Krieg DeVault's Health Care and Labor andEmployment Law practice groups. She concentrates her practice in the

Indiana Businesses: Are You Ready?

Preparing Your Organization’s Mandatory Safety Plan by the May 11 Deadline

Presented by:Amy J. Adolay Shelley M. JacksonNancy J. Townsend

May 6, 2020

DISCLAIMERThese materials should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult an attorney on any specific legal questions you may have concerning your situation. This document may constitute advertising materials in some jurisdictions. If you forward this document, please designate it as such.

© 2020 Krieg DeVault LLP. All Rights Reserved. This page, and all information on it, is proprietary and the property of Krieg DeVault LLP. It may not be reproduced, in any form, without the express written consent of Krieg DeVault LLP.

This constitutes attorney advertising. Krieg DeVault LLP, Indianapolis, Indiana is responsible for this content.

DISCLAIMER:

The contents of this presentation should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own attorney concerning your situation and specific legal questions you have.

About Our Speaker

Shelley M. [email protected]

Shelley M. Jackson is a member of Krieg DeVault's Health Care and Labor and Employment Law practice groups. She concentrates her practice in the areas of pharmaceutical regulatory compliance, health care professional license defense, data privacy and security, and employment law on behalf of employers of all sizes. Shelley brings a diverse set of professional experiences to her work, including time spent both in a law firm setting and in-house as an assistant general counsel and chief privacy officer for a multi-national corporation.

Whether providing day-to-day compliance advice, navigating disputes, or representing clients in high-stakes legal or regulatory matters, Shelley strives to combine broad substantive expertise with cost-effective, practical strategies. She routinely advises clients on regulatory compliance matters involving various state and federal regulatory frameworks and administrative authorities, including the Indiana Professional Licensing Agency, U.S. Department of Labor, U.S. Office of the Inspector General, and U.S. Drug Enforcement Administration. She is also a seasoned litigator with more than a decade of risk management and litigation experience.

Indiana’s “Back on Track” Plan – Overview

Five stages to reopen Indiana, with each additional stage having fewer limitations

Timing is fluid based on governingprinciples, established guidelines, and

varies by county in some instances

Infographic (created on May 4, 2020)provides “at a glance” information

Sources:https://www.backontrack.in.gov/

https://www.backontrack.in.gov/2348.htm

Indiana’s “Back on Track” Plan: Governing Principles

Number of hospitalized COVID-19 patients statewide has decreased for 14 days

State retains its surge capacity for critical care beds and ventilators

State retains the ability to test all Hoosiers who are COVID-19 symptomatic, as well as healthcare workers, essential workers, first responders, and others as delineated on the Indiana State Department of Health website

Health officials have systems in place to contact all individuals who test positive for COVID-19 and complete contact tracing

If principles cannot be met, all or portions of the state may be paused before moving forward or return to an earlier stage of the Governor’s stay-at-home order.

Source:https://www.backontrack.in.gov/files/BackOnTrack-IN_ReOpenPrinciples.pdf

Indiana’s “Back on Track” Plan: Back on Track Engine

Rapid detection through testing: strike teams, 50 additional testing locations with 100,000 capacity; anyone who is symptomatic or has had close contact exposure will have testing access

Contact tracing: centralized process; added 500+ tracers; all who test positive will be contacted; potentially at risk will be contacted

Protect Hoosier employees and consumers: source additional personal protective equipment (PPE) for businesses; develop small business PPE marketplace (under 150 employees and registered to do business in IN); $300 million disbursed to cities, counties, towns (may be given to local business for PPE)

Protect Indiana’s most vulnerable: those over 65 represent over 80% of COVID-19 deaths

Source:https://www.backontrack.in.gov/files/BackOnTrack-IN_ReOpenEngine.pdf

Indiana’s “Back on Track” Plan: Stage 1 (March 24 – May 4)

• Social gatherings with up to 10 people permitted• Essential travel only• Facial coverings recommended, social distancing, good hygiene• Elective medical procedures permitted as of April 27 (one person may accompany patient)• Essential manufacturing, construction, infrastructure, government, business, healthcare, and other

critical businesses and operations open as outlined in Executive Order 20-22• Essential retail businesses providing necessities of life such as grocery stores, pharmacies,

hardware, building materials, and more open as outlined in EO 20-22• Nursing homes remain closed to visitors• Restaurants/bars with food service may offer carryout, curbside, and delivery• Retail stores may offer call-in/online ordering with curbside pickup and delivery• State parks, golf courses are open; campgrounds are closed (except permanent RV and cabins)• K-12 school buildings are closed and all activities canceled until June 30

Source:https://www.backontrack.in.gov/files/BackOnTrack-IN_WhatsOpen-Closed-stage1.pdf

Indiana’s “Back on Track” Plan: Stage 2 (May 4 – May 23)

May 4 for all Indiana counties except Cass, Lake, and Marion; May 11 for Lake/Marion; May 18 for Cass• Hoosiers 65 and over/high risk should remain home when possible• Social gatherings with up to 25 people permitted following CDC social distancing guidelines• Facial coverings recommended, social distancing, good hygiene• Essential travel restrictions lifted; local non-essential travel permitted• Remote work encouraged whenever possible• Nursing homes remain closed to visitors• Open businesses and organizations must follow IOSHA/CDC and industry-specific guidance• Limited public access to government offices; county, local governments determine own policies• Manufacturing, industrial businesses open with restrictions• Retail stores may be open with 50% capacity (mall common areas at 25%)• Religious services may convene following guidelines as of May 8, 2020• Restaurants may open with restrictions one week after start of Stage 2 at 50% capacity• Personal services may open with restrictions one week after start of Stage 2 at 50% capacity• Bars and clubs, gyms, entertainment and tourism remain closed or virtual• Cultural, entertainment, sports venues, tourism are closed, with some exceptions• K-12 school buildings are closed and all activities canceled until June 30

Source:https://www.backontrack.in.gov/files/BackOnTrack-IN_WhatsOpen-Closed-stage2.pdf

Indiana’s “Back on Track” Plan: Stage 3 (May 24 – June 13)

• Hoosiers 65 and over/high risk should use caution and limit community exposure• Remote work encouraged whenever possible• Social gatherings with up to 100 people permitted following CDC social distancing guidelines• Facial coverings recommended• No travel restrictions• Nursing homes remain closed to visitors• Manufacturing, industrial, construction open with IOSHA/CDC guidelines• Limited public access for government offices; county/local governments determine policies; public

libraries may reopen according to their policies• Bring offices employees back in waves and with restrictions• Retail open at 75% capacity; restaurants and bars with food at 50% capacity (no bar seating or live

entertainment)• Bars and nightclubs closed; gyms open with limitations; personal services with limitations• Cultural, entertainment, sports venues, tourism are closed, with some exceptions• Religious services may convene following guidelines

Source:https://www.backontrack.in.gov/files/BackOnTrack-IN_WhatsOpen-Closed-stage3.pdf

Indiana’s “Back on Track” Plan: Stage 4 (June 14 – July 3)

• Hoosiers 65 and over/high risk should use social distancing and remain cautious• Remote work continues as needed• Social gatherings of up to 250 following CDC social distancing guidelines• Facial coverings optional• Nursing homes remain closed to visitors• State government building access restrictions lifted• Professional offices return to work at full capacity• Retail stores/malls at full capacity with social distancing• Dining rooms at 75% capacity• Restaurant bar seating at 50%; bars and nightclubs at 50% with social distancing• Cultural, entertainment, and tourism open at 50% capacity• Recreational sports leagues and tournaments permitted• CDC guidance on day camps and overnight camps• Large venues open with social gathering guidelines• Amusement parks, water parks open at 50% capacity with reservations• Large events such as conventions, sporting events, fairs, festivals, parades remain closed

Source:https://www.backontrack.in.gov/files/BackOnTrack-IN_WhatsOpen-Closed-stage4.pdf

Indiana’s “Back on Track” Plan: Stage 5 (July 4 and beyond)

• Hoosiers 65 and over/high risk should use social distancing and remain cautious• Remote work and facial coverings optional• Most places fully open with CDC social distancing• Social gatherings of over 250 permitted using CDC social distancing• Nursing home guidance to be evaluated• K-12 school operations to be determined• Government/offices open for normal operations• Retail stores/malls open at full capacity• Restaurants, bars, and nightclubs open at full capacity• Restrictions are lifted at gym/fitness facilities• Conventions, sports events, fairs, festivals (state fair) may resume• Restrictions lifted for amusement parks, water parks with social distancing• CDC will provide guidance on day and overnight camps

Source:https://www.backontrack.in.gov/files/BackOnTrack-IN_WhatsOpen-Closed-stage5.pdf

Indiana’s “Back on Track” Plan: Recent/Future Executive Orders

• EO 20-24: Resumption of Elective and Non-urgent Medical Procedures (April 24)

• EO 20-25: Renewal of Public Health Emergency Declaration for the COVID-19 Outbreak (May 1)• Renews public health emergency declaration until June 4, 2020

• EO 20-26: Roadmap to Reopen Indiana for Hoosiers, Businesses, and State Government (May 1)• Addresses requirements in Steps 1 and 2 of “Back on Track”• County/local governments may enact stricter requirements unless prohibited; may not enact

less restrictive requirements (note: no restrictions above a travel watch permitted)• Sets industry-specific requirements and enforcement mechanisms

• Future orders will be issued for Steps 3+ and as needed

Source:https://www.in.gov/gov/2384.htm

Indiana’s “Back on Track” Plan: Opening Up America Again Guidelines

Criteria: Recommends data-driven conditions for each region/state prior to proceeding to phased opening

Preparedness: Provides guidance for states to meet challenges, including testing/contact tracing, healthcare system capacity, and planning

Phase Guidelines: Details responsibilities of individuals and employers during all phases (and within specific phases – outlines a three-phase approach)

Source:https://www.whitehouse.gov/openingamerica/

DISCLAIMER:

The contents of this presentation should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own attorney concerning your situation and specific legal questions you have.

About Our Speaker

Amy J. [email protected]

Amy J. Adolay focuses her practice on employment law counseling and litigation and school law. Ms. Adolay serves as the Chair of the firm's Labor and Employment Practice Group. She counsels employers on complex human resources issues that arise on a daily basis in the workplace and defends employers before administrative agencies and in state and federal courts. Ms. Adolay handles a wide variety of types of claims, including discrimination, harassment, retaliation, family and medical leave, disabilities, unemployment compensation, wage and hour, and restrictive covenants. Ms. Adolay also routinely reviews, revises, and drafts employment related documents such as employee handbooks, employment policies and procedures, employment agreements, severance and retention agreements, and non-compete and non-solicitation agreements.

Ms. Adolay’s extensive employment law experience has included representing employers in collective actions and litigating complex claims relating to discrimination, restrictive covenants, and various other employment and contract disputes.

May 11 Safety Plan Requirement

• Must develop plan to implement measures and institute safeguards to ensure a safe environment for employees, customers, clients, and members

• Must provide the plan to each employee and post publicly• The minimum requirements of the plan include the following:

(1) An employee health screening process;(2) Enhanced cleaning and disinfecting protocols;(3) Enhancing employees’ and customers’ ability to wash hands or take

additional personal hygiene measures such as use of hand sanitizer; and(4) Complying with social distancing requirements of the CDC

• Must follow IOSHA standards

May 11 Safety Plan Requirement: Who is Covered?

• Businesses continuing operations or being allowed to reopen• All Hoosier employers• Types of entities specifically listed in EO 20-26 as being required to create a safety plan:

• Restaurants (including country clubs, wineries, and social clubs that provide in-person full service dining)• Professional services and other office-based businesses (legal, accounting, insurance, real estate)• Financial and insurance institutions (e.g., banks, currency exchanges, lenders, title companies, appraisers, financial

markets, trading and futures exchanges, payday lenders, insurance companies)• Personal services (spas, salons, tattoo parlors)• Human services operations (e.g., long-term care, day care, centers caring for those with disabilities)• Social services and charitable organizations (non-profits such as food banks, shelters, etc.)• Laundry services• Hotels and motels• Food, beverage, and agriculture (e.g., manufacturing, processing, including farming, businesses that provide necessities

of life for animals)• Trades (e.g., building, construction, plumbers, electricians)• Mail, post, shipping, logistics, delivery and pick-up services• Transportation (e.g., airlines, taxis, Lyft, Uber, marinas)• Manufacture, distribution, and supply chain for products and industries companies• Labor union functions• Media

Additional Guidance for all Businesses/Employers in Governor’s Executive Order

• Continue work from home to the extent possible• Review sick policies to be sure they are up to date, flexible, and non-punitive so sick employees can

remain at home to care for themselves and others• Encourage employees to conduct daily health assessment• Actively encourage sick employees to remain at home• Promptly separate and send home employees with acute respiratory illness symptoms• Educate employees through posters about need to stay home when sick, proper sneeze and cough

etiquette, and hand hygiene• Provide employees with soap and water, hand sanitizer, tissues, and no-touch trash receptacles• Perform enhanced cleaning of commonly touched surfaces and provide disposable wipes to

employees to clean these surfaces• Be prepared to change business practices in order to maintain critical operations

OSHA/IOSHA

• Executive Order 20-26 reminds employers of their legal duty to create a safe workplace under the Indiana Occupational Safety and Health Act (IOSHA)

• This duty also exists under OSHA• Consult OSHA’s “Guidance on Preparing Workplaces for COVID-19”• Addresses reducing exposure, classifying workers by their level of risk, and what the employer must

do to protect each category of workers. • Details creating an infectious disease preparedness and response plan, implementing infection

prevention measures, developing policies and procedures for identifying and isolating individuals who are sick, developing and informing workers about workplace flexibilities and protections, and implementing workplace protocols such as engineering controls (airflow systems) and administrative controls (changes to policies, PPE)

• GOAL: reduce exposure to the workplace hazard of COVID-19

Deeper Dive into the Requirements of your Business’s Safety Plan

(1) Employee Medical Screening Procedures• Procedures adopted depend on industry and exposure to coworkers and public• EO 20-26:

• Suggests having employees perform daily self-assessments for symptoms of COVID-19• Advises employers to immediately send home sick employees and advises that should not

return until fever free at least 72 hours, symptoms have improved for 72 hours, and at least 7 days have passed since symptoms began

• Encourages screening of real estate professionals and requires for restaurant workers• Also consult CDC guidance on screening, including “Interim Guidance for Businesses and

Employers to Plan and Respond to COVID-19”. • Review industry-specific guidance on screening (e.g., critical infrastructure workers, healthcare

workers)

Deeper Dive into the Requirements of your Business’s Safety Plan

(2) Enhanced Cleaning and Disinfecting Protocols, Including for High Touch Surfaces• High touch surfaces include countertops, railings, door handles, and workstations• Also provide employees with disposable wipes for these surfaces• Consult CDC Guidance, “Reopening Guidance for Cleaning and Disinfecting Public Spaces,

Workplaces, Businesses, Schools, and Homes”• Directs continued general cleaning with soap and water• Recommends disinfection of commonly touch surfaces with EPA-approved products• Advises as to alternate disinfectants if EPA-approved products are unavailable• Contains specific sanitation guidance for specific types of businesses (healthcare facilities,

transportation, restaurants, schools, and others)

Deeper Dive into the Requirements of your Business’s Safety Plan

(3) Enhanced Personal Hygiene Measures Made Available by the Business• EO 20-26:

• Discusses increasing ability of employees and customers to wash hands, use hand sanitizer, and provide additional items such as tissues and no-touch trash receptacles

• Recommends having posters that advise on appropriate sneeze and cough etiquette, proper hand hygiene, and encouraging sick employees to stay home. See CDC website for posters.

• CDC: See “Interim Guidance for Businesses and Employers to Plan and Respond to COVID-19, which contains recommendations and links to recommendations on proper hand washing techniques, not touching nose, moth, and eyes with unwashed hands, avoiding close contact, covering one’s face and nose with a cloth cover, covering coughs and sneezes, and disinfection.

Deeper Dive into the Requirements of your Business’s Safety Plan

(4) Social Distancing Requirements as Established by the CDC• CDC’s “Social Distancing, Quarantine, and Isolation” publication

• Explains recommendation of remaining at least 6 feet from others (outside of those in your home)

• Avoid gathering in groups and crowded places• Rules apply indoors and outdoors, regardless of whether symptomatic, and are especially

critical for those in higher risk groups• Work from home to extent possible• Marking 6 foot distances in businesses• Offering separate business hours for vulnerable populations• Using grocery delivery services• Avoiding public transportation, if possible• Wearing a face cover when around others, particularly when 6 foot distance cannot be

maintained

Back on Track Industry Guidelines

• https://www.backontrack.in.gov/industryguidelines.htmGeneral Guidelines For All Businesses Manufacturing and Industrial Retail Office Settings Restaurants Gyms, Fitness Centers and Similar Facilities Personal Services

DISCLAIMER:

The contents of this presentation should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own attorney concerning your situation and specific legal questions you have.

About Our Speaker

Nancy J. [email protected]

Ms. Townsend counsels employers in every aspect of state and federal employment law in Indiana and Illinois: hiring, firing, contracting, discipline, and drafting of handbooks, company policies, non-compete, non-solicitation, confidentiality, and non-disclosure agreements, employment offer letters, employment contracts, termination letters, and severance agreements. She advises clients toward best practices to comply with federal statutes that protect employees, such as Title VII, the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA),the Age Discrimination in Employment Act (ADEA), wage and hours under the Fair Labor Standards Act (FLSA), the Older Workers Benefit Protection Act (OWBPA), the WARN Act governing plant closings and layoffs, and all related regulations and state statutes. She offers employment audits to lessen the possibility of lawsuits and charges of discrimination, she responds to charges by the EEOC and other agencies, and she defends employers in litigation. She assists employees to review and negotiate employment contracts, restrictive covenants, and severance and separation agreements and also to file wage claims against employers who illegally withhold wages.

Employee Health Screening: Legal Pitfalls and Best Practices

Legal Pitfalls in Employee Health Screening

• TESTING VALIDITY AND COMMUNICATION OF RESULTS

• AVOIDING FURTHER SPREAD

• EMPLOYEES WHO TEST POSITIVE FOR COVID-19

• AVOIDING DISCRIMINATION

• COMPENSATION ISSUES

Employee Screening: Best Practices

VALIDITY, INTERPRETATION, AND COMMUNICATION OF RESULTS• Employee consent form that explains the limitations of the test, the confidentiality of the test, and

outlines the employer policy for Return-to-Work.

• Use trained personnel for the worksite testing and document the training they received.

• CDC says COVID-19 fever is 100.4 or higher.

• Results are medical records and, if recorded, must be confidential and kept separate from employee’s personnel file.

• Temperature screening and other tests are not diagnostics --- passing the test at any given moment is not an assurance that the employee is or will remain disease-free.

• Employee who has fever should discreetly be informed and sent home, with instructions to quarantine, not return to work for 14 days, and require additional testing.

Employee Screening: Best Practices

AVOIDING FURTHER SPREAD• Have employees self-test and self-report temperature before coming to the workplace.

• Use equipment with no direct contact, if possible.

• Supply both the tester and the employee with adequate PPE.

• Tester should wear gloves, goggles, face masks, and gowns and, if not touchless, change gloves with each test.

• Set up system that allows social distancing and hygiene while waiting to be tested, e.g

• wait in car until called,

• use multiple lines and entrances with testing at each,

• provide sanitation supplies.

6 Steps To Take If an Employee Tests Positive for COVID-19

• Offer Support

• Explain Your Company’s Policy

• Assess Risk to Others in the Workplace

• Take Action

• Inform At-Risk Employees

• Inform All Employees

Employee Screening: Best Practices

AVOIDING DISCRIMINATION

• Either test everyone or delineate groups for testing based on necessity of their job type, workplace environment, or some other non-discriminatory factor.

• If conducting a test other than mere temperature screening, may be required to accommodate employee’s condition or disability that makes intrusive testing such as nasal swab infeasible.

• Do NOT decide who will be tested based on the employee’s vulnerability to the disease as a result of age or pre-existing conditions. BUT these vulnerabilities may require ADA accommodation, such as:

• enhanced protective gowns, masks, gloves, or other gear or other protective measures such as a separation barrier between the employee and customers and co-workers.

• eliminating “marginal” functions (less critical or incidental job duties) that increase risk of exposure

• temporarily modifying work schedules if it decreases exposure

• moving the employee to a different location in the workplace to allow more social distancing.

Employee Screening: Best Practices

COMPENSATION ISSUES

• Employee should be compensated for time waiting in line and taking temperatures and also time waiting for test results.

• The temperature testing will start the workday, which cannot be paused thereafter except for lunch period or break over 20 minutes.

• If employee fails screening and is sent home…

• Non-exempt employee must be paid for the time spent waiting in line, testing, and waiting for results.

• Salaried exempt employee

• Can be required to take accrued paid leave or vacation time BUT, in any event,

• Must receive guaranteed salary for that week.

For more information, see WHD Opinion Letter FLSA2005-41.

State Law Enforcement for Return-to-Work Business Plans

• IOSHA: all administrative and enforcement actions against businesses or entities failing to comply with workplace safety conditions

• Enforcement Response Team: • Respond to and investigate all reports of violation of the Executive Order • Comprised of state law enforcement agencies other than the State Police• Led by Chairman of Indiana Alcohol & Tobacco Commission • ERT in conjunction with ISDH and/or local boards of health to take all administrative and

enforcement actions against entities failing to abide by restrictions set forth in Executive Order, including:• Verbal order to cease unsafe practice• Order to cease unsafe practice• Order to close the business entity• Referral to prosecuting attorney

• Knowing violation is class B misdemeanor, punishable up to 180 days incarceration and fine up to $1000

Questions?

Shelley M. [email protected]

Amy J. [email protected]

Krieg DeVault LLP COVID-19 Insights Webpage https://www.kriegdevault.com/info/covid--insights

Nancy J. [email protected]