With the number of COVID-19 cases on the rise in Maine, many employers are struggling facing difficult decisions regarding their business operations and employees. During this unprecedented time in world history, Eaton Peabody is here to advise and support Maine’s business community, large and small. Please contact our employment law group for any questions or specific advice you may need regarding employees, benefits, and maintenance of business operations as the COVID-19 pandemic continues.
IMPORTANT UPDATES FOR MAINE BUSINESSES
As of March 18, 2020, Governor Mills has taken actions to prevent the spread of COVID-19 in Maine. All bars and restaurants must shut down dine-in services starting at 6PM on March 18, and the order will remain in effect until March 31. The governor has “strongly urged” nonessential businesses close for two weeks, and has mandated that no gatherings of more than 10 people are permitted at any time. Businesses that are recommended to close specifically include, but are not limited to, gyms, hair salons, theaters, casinos, and shopping centers.
Prohibited gatherings include community, civic, public, leisure, faith based events, social club, sporting events, concerts, fundraisers, parades, fairs and festivals, and any similar event or activity in a venue such as an auditorium, conference room, meeting hall, fitness center, or private club.
Restaurants and bars offering carry-out, delivery, and drive-through food and beverage service may continue to do so, but all eating and drinking inside restaurants and bars is temporarily prohibited.
Any business activity that continues should implement strict social distancing policies for employees and customers, and minimize any gathering of customers.
Customers are encouraged to support local businesses through gift card purchases for future use and through take out services.
The Small Business Association has declared that Maine businesses are now eligible to apply for economic support loans to help recover from temporary loss of revenue caused by COVID-19.
Maine DOL is providing ongoing up to date information for Maine employers here.
Maine Emergency Unemployment Bill
The legislation temporarily revises eligibility requirements to include situations not typically covered.
Employees who are temporarily laid-off due to partial of full closure of the individual’s place of employment or if the individual is quarantine, under an isolation restriction, has a demonstrated risk of exposure or infection, or needs to care for a dependent family member as a result of COVID-1 will now be eligible for unemployment benefits.
The bill allows those individuals to apply for unemployment benefits and waives the one week waiting period for benefits, as well as the requirement to actively seek work as long as the employer plans to return the individual to their jobs when operations resume, and provided the individual remains able and available to work for the employer and maintains contact with the employer.
Benefits paid to individuals due solely to COVID-19 will not be charged against the experience rating of the employer.
Employers may continue to provide health insurance during this period and it will not affect employee’s ability to receive unemployment benefits.
Employers may also participate in a WorkShare program, which is an unemployment option that helps businesses retain their workforce during a temporary slowdown in work and allows the employer to voluntarily reduce hours of staff in lieu or layoffs. This allows the employees to collect partial unemployment benefits to help offset the loss of income. See http://www.maine.gov/unemployment/workshare/ to learn more.
Maine’s Employment Leave for Caregivers and Persons Affected by Public Health Emergencies
This law covers any individuals who are undergoing treatment, or in quarantine or isolation, or are otherwise caring for someone who is undergoing treatment, in quarantine, or in isolation.. If an employee communicates to you that they need leave for any of those reasons within a reasonable time frame, employers must allow the leave either paid or unpaid. Government employees who are responsible for ensuring public health and safety or those whose leave would cause an undue hardship which requires the employer to downsize operation are exempt from this law.
If you feel that your business should not, or cannot, continue to operate for a temporary period, you have a number of options on how to proceed. If you are considering a temporary or permanent lay off of employees, a new paid leave policy, or are unsure how to apply your current leave policies, please contact Sarah E. Newell for specific guidance.
For employers closing for the recommended two week period you should document your decision to close based on the governor’s recommendation. Employers who plan to temporarily lay off employees should document that decision, as well as provide employees with the necessary information to file for unemployment under the newly passed law, ensuring that employees know your intention to return them to work and the reasoning for the layoff.
With regard to ongoing operations, the CDC has made specific recommendations. We recommend focusing on the following rules of thumb:
- Encourage employees who are sick or have signs of illness to stay home. Any symptoms such as a fever, cough, or shortness of breath are signs that an employee may be infected and should stay home. If you observe any employees exhibiting symptoms, separate them from other employees and send them home immediately.
- Ensure you have up-to-date sick leave policies and make sure they are flexible enough to accommodate sick employees or employees with sick family members or housemates who may be exposed to the virus.
- Offer work from home policies to all employees who may be able to work from home.
- Provide tissues, alcohol-based hand sanitizer, antibacterial soap and no-touch trash receptacles for employees. Instruct employees to wash their hands often with soap and water for at least 20 seconds. A common hand washing technique used in the restaurant industry tells employees to sing “happy birthday” in their head and wash their hands for that entire period to ensure full hand cleansing.
- Reassure nervous employees about your business’ strategies to prevent the spread of any illness and keep them safe. Nervous employees may be reluctant to come to work. If you find this is the case, note that there may be ADA considerations for individuals with anxiety, OCD, or preexisting conditions that make them susceptible to COVID 19. You are still required to engage in the interactive process and accommodations if that is the case. See EEOC guidance for more info and contact your attorney if you are unsure how to proceed.
- Perform routine cleaning, particularly for frequently touched areas such as doorknobs, handles, workstations, and countertops.
- Advise employees not to make unnecessary travel plans and to check for symptoms before traveling. Ensure you have a policy for employees returning from travel regarding when they may return to the office after traveling, and if a period of self-isolation should be necessary upon return.
- Don’t make knee-jerk decisions – be sure to carefully think through any decisions about your business operations and employees. This is an important time to make sure your employees know you are concerned for their health and wellbeing, plan for your future business operations, and document any employment related decisions including your reasoning for the decision.
Employers must also be aware of potential workers compensation claims related to COVID 19 exposure. If an employee comes forward claiming that his/her illness was caused by workplace exposure, especially if it results in lost time, a First Report of Injury must be completed immediately and submitted to the employers workers compensation carrier. Employers only have 14 days to determine whether a claim will be accepted, denied, or paid without prejudice, or they might otherwise have to pay total incapacity benefits from the date of notice. Importantly, however, an employee would have to prove that he/she was exposed at work, rather than another location, and whether the exposure occurred in the course and scope of employment.
COVID-19 Resources:
Paycheck Protection for Small Businesses
Dealing with Debt: COVID-19’s Effect on Foreclosures, Bankruptcy, and Collections
Families First Corona Virus Response Act
COVID-19 and the Construction Industry
Delays and the AIA Owner – Contractor Agreements
Essential Businesses – Construction Industry
These materials have been prepared for general informational purposes only and are not intended as legal advice.