Note: Because the COVID-19 situation is dynamic, with new governmental measures each day, employers should consult with counsel for the latest developments and updated guidance on this topic.

As the novel Coronavirus, COVID-19, spreads across the United States, laws impacting employers are being enacted and amended at an extraordinary rate to help ease the impact of the pandemic on employees.  Minnesota has acted swiftly to provide greater protection to employees who have been, or who may yet be, impacted by this global pandemic.  The following is intended to provide an update on the most recent changes to Minnesota state law designed to address the COVID-19 in the employment law context – including in the areas of sick and safe time, unemployment compensation, Minnesota OSHA, workers’ compensation, school closures, and the Minnesota Human Rights Act – as well as some practical recommendations for employers moving forward in this new environment.  

Clarification Provided on Sick and Safe Time Obligations in Minneapolis and Duluth

Not all employers in Minnesota are covered by sick and safe time laws, but employers in Minneapolis, St. Paul, and Duluth have struggled to determine how these municipal sick and safe time ordinances might apply to COVID-19-related quarantines, furloughs, and illnesses.  Minneapolis and Duluth have responded, providing some guidance.

Minneapolis issued a frequently asked questions guide (FAQs) regarding the application of Minneapolis’ Sick and Safe Time Ordinance to absences related to COVID-19.  The FAQs clarify that an employee may use accrued sick and safe leave for absences related to:

1. Testing;
2. Care or quarantine due to COVID-19 symptoms or infection;
3. Quarantine following close contact with a COVID-19-infected or symptomatic person;
4. Caring for family members whose school or place of care was closed due to COVID-19; and
5. Workplace closures by order of a public official.

The FAQs also clarify that “preemptive closures” (i.e., absent an order by a public official) and “preemptive self-quarantines” (i.e., without reason to believe the employee has contracted the illness) are not covered uses under the ordinance.  Finally, the FAQs also clarify that employees may only use sick and safe time to cover scheduled shifts or the shifts the employee would have expected to work had their work not been ordered closed by a public official. 

The City of Duluth also issued FAQs regarding its Earned Sick and Safe Time Ordinance.  The FAQs clarify that an employee may use “sick time” for an employee’s own medical diagnosis, care, treatment, or preventative care or to care for a family member who needs medical diagnosis, care, treatment, or preventative care.  The FAQs also imply that employers should not “prevent an employee from working” based on travel to particular areas.  However, the FAQs do not address an employer’s ability to request that employees work from home following travel, self-quarantine by employees after contact with an individual who has contracted coronavirus, or whether leave could be used for absences associated with closures ordered by a public official (including schools and child-care facilities).

Employers should consider consulting with counsel regarding the implications of Minnesota’s varying sick and safe leave ordinances when evaluating their PTO programs, classifying absences, and considering temporary closures in these quickly evolving times. 

Changes to Unemployment Compensation

Although not all employees have access to sick and safe time, many impacted by the effects of COVID-19 will receive relief from State of Minnesota Executive Order 20-05.  Through this Order, Governor Tim Walz ordered that strict compliance with the state unemployment insurance law be suspended and expanded the availability of unemployment benefits to reduce the impact of the current crisis on both employees and employers in Minnesota. 

Most significantly, the Order expands the universe of eligible individuals to include persons who:

• Have temporarily or permanently lost their job or had their hours reduced due to COVID-19
  
  • This can include job loss based on contraction of COVID-19 or as a result of employer actions related to COVID-19
  • the hours reductions must be substantial – putting employees below 32 hours a week
  • this includes employees places on furlough
• Have been recommended or ordered by a healthcare professional or health authority to avoid contact with others due to COVID-19 (this can be due to the risk to others or the risk to the individual (e.g., someone immunocompromised));
• Have been instructed by their employer not to come to their workplace due to an outbreak of COVID-19; OR
• Have received notification from a school district, daycare, or other childcare provider that either classes are canceled or the applicant’s ordinary childcare is unavailable, IF
  
  • the applicant made reasonable effort to obtain other childcare;
  • requested time off or other accommodation from the employer; and
  • no reasonable accommodation was available.

Additionally, pursuant to the Executive Order, the requirement that unemployment applicants wait a week in order to be eligible for benefits has been waived through December 31, 2020.  In addition, employees will not be required to search for work that poses a risk to their health or the health of others, and employees who are only temporarily out of work will not be required to search for new employment at all.  Instead, employees who are only temporarily out of work will be allowed to meet the statutory search-for-work requirement by simply keeping in touch with their employer during this time. 

Of significance for employers, they payment of a bonus, paid time off (PTO), transition assistance, etc., may be used to delay and set off unemployment benefits. The amount of delay and benefit set-off will depend on the amount the employee is paid and could be dollar-for-dollar.  Additionally, it is important to note that paying a single lump sum may not prevent an extended delay (e.g., you could pay an employee for three weeks at once, or pay the same amount over a three-week period, and in both scenarios the employer would likely have a three-week delay.)Employees can apply online and calculate their own benefits. 

Unemployment typically pays about 50% of a worker’s average earnings, but we expect calculation methods to be in flux.  Indeed, things are changing rapidly under the governor’s new Order, and as the Minnesota Department of Employment and Economic Development (DEED) adjusts its processes to comply, including the current Order to suspend “strict enforcement” of the statute, we are likely to see additional changes to DEED’s practices. 

Reminders from Minnesota OSHA

While Minnesota’s Occupational Safety and Health Act (MNOSHA) has not been amended to address COVID-19 specifically, it has issued a reminder that employers must be mindful of the Act’s protections now and in the weeks to come. MNOSHA was enacted “to assure so far as possible every worker in the state of Minnesota safe and healthful working conditions and to preserve our human resources . . .”  This includes preventing the spread of known communicable diseases in the workplace.

To this end, MNOSHA has issued a bulletin reminding employers that they must not retaliate against employees who report health and safety concerns at work. That includes an employee who reports a coworker they believe to be symptomatic or a workplace practice they believe may increase exposure. If such complaints are made, the employer must not take adverse action against the employee because of that complaint. If the employer needs to discipline or reduce hours for the employee for a reason unrelated to a complaint, the employer must clearly communicate that reason and avoid the appearance of retaliation.

MNOSHA’s bulletin also reminds employers that they must not retaliate against an employee who contracts or is exposed to COVID-19 and stays home to self-isolate or quarantine at the recommendation of the Minnesota Department of Health (MDH). The same is true for an employee who misses work to care for a family member who has contracted or been exposed to the virus and is isolated or quarantined at MDH’s direction. Covered family members include minors and any adult with a disability or who is considered a vulnerable adult.

COVID-19-Related Workers’ Compensation

Workers’ compensation laws are not the first laws many think about when considering the impact of COVID-19.  However, if it can be shown that an employee contracted COVID-19 at work, COVID-19 could have a significant impact in the area of workers’ compensation.  Because of this, the Minnesota Department of Labor has issued guidance on whether a COVID-19 illness, exposure or absence will be covered under the state’s workers’ compensation laws. After analyzing the new guidelines, we have highlighted three key takeaways:

1. Emergency first responders do not need to offer “proof” they contracted COVID-19 if they contracted the disease while working outside the hospital.  For these workers, at least at this time, it is presumed such workers will be entitled to workers’ compensation benefits.
2. All other workers testing positive for COVID-19 who believe they contracted the virus while at work or working will need to offer “proof.” In Minnesota, the employee must prove by a preponderance of the evidence that work caused or substantially contributed to the alleged work injury.
3. Regardless of occupation, workers who have not contracted the virus, but are nevertheless under quarantine (regardless of the reason), are not entitled to workers’ compensation benefits.

School Closure “Emergency Workers”

On March 15, 2020, Governor Walz issued Executive Order No. 20-02 requiring Minnesota’s public and charter schools to close to students from March 18 to March 27, 2020.   The Executive Order does not apply to childcare facilities, private schools, or tribal schools. 

Of direct relevance to certain employers and their employees, the Executive Order provides that schools are directed to provide care for children ages 12 and under of “emergency workers” during the period that schools are closed pursuant to the Order. The Order further encourages school districts to provide care for the same children before and after school hours.  The Order identifies the following categories of “emergency workers:  “providers of healthcare, emergency medical services, long-term and post-acute care; law enforcement personnel; personnel providing correctional services; public health employees; firefighters and other first responders; and court personnel.” 

The Minnesota Department of Education (MDE) has since issued additional guidance regarding who will be considered an “emergency worker” for purposes of this Executive Order. MDE’s guidance identifies two tiers of emergency workers.  The first tier includes the categories of workers discussed in the Executive Order and provides additional detail regarding the types of jobs that are included in these categories.  MDE’s guidance indicates that school districts must provide care for children of these Tier 1 emergency workers. 

MDE’s guidance also identifies a second tier of “emergency workers” that includes: educators, gas and electric utility workers, food distribution personnel, water treatment staff, child care workers, Minnesota Department of Transportation employees, state and local essential IT personnel, substance disorder treatment workers, medical examiners, and activated members of the National Guard.  MDE does not require schools to provide care for children of the second tier of emergency workers, but encourages them to “make every effort possible” to do so.  MDE’s guidance makes clear that each school district may exercise its discretion as to whether to provide care to the second tier of emergency workers.   

MDE’s guidance indicates that emergency workers will be required to present a form of identification that confirms they are an emergency worker in one of the tiers discussed above.  MDE suggests such identification can come in the form of an identification badge or a letter from the employer.  In order to avoid confusion and to help assure emergency workers’ children receive the care discussed in the Executive Order, employers should consider providing each emergency worker with a letter that specifically identifies them as an emergency worker and identifies the specific category of emergency work they perform.   Employers can also take the additional proactive step of sending these letters to the school district superintendent to ensure the school district has received the information. 

COVID-19 and the Minnesota Human Rights Act

Like the federal civil rights laws, the Minnesota Human Rights Act (MHRA) prohibits discrimination based on race, color, national origin, disability, and other protected classifications.  The Centers for Disease Control and Prevention (CDC) has advised in this context:  “To prevent stigma and discrimination in the workplace, use only the guidance described below [provided by the CDC] to determine risk of COVID-19.  Do not make determinations of risk based on race or country of origin, and be sure to maintain confidentiality of people with confirmed COVID-19.” CDC, Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19), February 2020.

The CDC’s guidance highlights how employers must be vigilant in enforcing their Equal Employment Opportunity polices in the current environment.  For example, employers should be careful not to exclude any person from work or work-related activities, or from any type of customer or client interaction, based purely on race or national origin.  Instead, any exclusion should be based on objective evidence of illness, exposure consistent with CDC guidance, or recent travel to a high-risk area. Additionally, employers should ensure that any COVID-19 policies enacted do not implicate anti-discrimination laws such as the MHRA, not only based on race, color, age, pregnancy, or national origin, but also on disability or other prohibited bases.

Since COVID-19 is a temporary impairment, it is likely not an inherently-qualifying disability under the MHRA or under the Americans With Disabilities Act (ADA).  However, an individual could be impacted by COVID-19 to the degree that their condition constitutes a disabling condition under these statutes. Moreover, COVID-19 could impact an existing medical condition that qualifies as a disability, which could also trigger the need to consider accommodations.  

Employers also must be cautious to avoid discrimination or harassment against individuals who are perceived as disabled because they are exhibiting symptoms suggestive of having contracted coronavirus. In order to accomplish this, employers should ensure the confidentiality of all employee medical information and leave details, and work to tamp down rumors about employees related to employee health or travel. Employers must be vigilant about promptly responding to and investigating any complaints of harassment or bullying in the workplace.  Finally, employers should ensure that any travel restrictions and other employer-mandated policies are administered impartially.

Conclusion

Like most other states, Minnesota’s state employment laws and its local employment laws are changing to address COVID 19 and its impact on employers and employees.  One way to address this rapidly evolving situation is to continually monitor the CDC’s website and littler.com/coronavirus for changes in both the laws and for changes in how state and local governments choose to interpret and enforce these laws in extraordinary times such as these.  It is also critical to seek the advice of qualified employment law counsel to ensure that you have the benefit of the most recent changes to the law and advice relating to the same before taking action.