City Employment Issues During COVID-19 Pandemic

Published: April 2, 2021

(Updated Jan. 20, 2022)

Note: On Jan. 13, 2022, the Supreme Court of the United States (SCOTUS) issued an order stopping the OSHA Vaccination and Testing ETS for employers with 100 or more employees from being implemented. MNOSHA issued a statement the same day that they would not be enforcing the ETS, pending future developments.  The U.S. Supreme Court upheld a similar requirement for health care workers, which only affects those cities with covered health care facilities.

Read the SCOTUS order (pdf)

The League is using the Centers for Disease Control and Prevention (CDC) and Minnesota Department of Health (MDH) to provide much of our guidance. We urge our member cities to keep checking the CDC and MDH websites for updates. Because this situation is constantly evolving, the League encourages cities to work with their city attorney in implementing the new law and adapting any policies.

For policy samples and other guidance relating to COVID-19 employment related issues, contact HRBenefits@lmc.org.

Get answers to these FAQs about city employment issues and COVID-19:

Q1. How will federal financial relief for COVID-19 be applied to unemployment accounts? (Updated Jan. 20, 2022)

Q2. What is the HR policy to address an employee that may have been exposed to COVID-19?  (Updated Jan. 20, 2022)

Q3. Can we terminate an employee who is not able to come to work due to COVID-19?

Q4. Are workers who contract or are exposed to COVID-19 eligible for workers’ compensation? (Updated Dec. 30, 2021)

Q5. How do OSHA regulations apply to remote workers? What about ergonomics?

Q6. If an employee has been diagnosed with COVID-19, when can they return to work? (Updated Jan. 20, 2022)

Q7. How do cities process I-9s for new hires during the COVID pandemic? (Updated Dec. 30, 2021)

Q8. How can I learn more about the optional federal Families First Coronavirus Response Act (FFCRA) leaves under the American Rescue Plan Act of 2021?

Q9. With the American Rescue Plan Act of 2021, in addition to the optional FFCRA leave, what are other employment-focused aspects I should be aware of?

Q10. Can a city require an employee to be vaccinated for COVID-19?

Q1. How will federal financial relief for COVID-19 be applied to unemployment accounts?

A1. The Minnesota Department of Employment and Economic Development (DEED) will analyze employer accounts to determine whether the employer qualifies for additional financial relief available under state law. If your city had a significant number of layoffs related to the pandemic, DEED may be able to remove additional benefit charges. The employer will receive a letter if additional adjustments are made to the account.

Under the American Rescue Plan Act, federal financial relief ended in September 2021. While there are ongoing discussions at the federal level about resuming the benefit, to date, there has not been any legislation that has done so.

The state asks that employers wait until they apply all available financial relief before contacting them about the status of specific benefit charges. DEED will not send cities quarterly bills until their review is finalized.

Learn more about state Unemployment Insurance & COVID

Unfortunately, since 2020 there have been cases of reported unemployment fraud. DEED has clarified there has been no DEED or UI data breach, and provides the following guidance for individuals who notice something improper:

  • File a police report — this is identity theft.
  • Check their credit report — again, this is identity theft and bad actors may have applied for many forms of credit and programs.
  • Notify the UI office — individuals can notify the UI office and they will follow up.

Access DEED’s new fraud reporting page

DEED officials note that they work in coordination with local law enforcement on fraud issues.

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Q2. What is the HR policy to address an employee that may have been exposed to COVID-19?

A2. Employers have an obligation (under OSHA regulations and OSHA guidance on preventing the spread of COVID-19) to keep their workplaces safe, and the Department of Labor (FAQ #13) states an employer may encourage, or require, employees to telework as an infection-control or prevention strategy, provided the employer is not singling out employees on a basis prohibited by any of the Equal Opportunity Employment laws.

In the absence of an order by a health care provider to self-quarantine, and in the event the position simply is not one that can work remotely, employers should encourage employees who are ill with COVID-19 symptoms or are exposed to ill family members to stay home. See MDH’s updated guidance on if a person is sick or tests positive for COVID-19  and Close Contacts and Quarantine   as of Jan. 6, 2022.

A2, Part A: Employee exhibiting COVID-19 like symptoms

If a worker is exhibiting symptoms leading you to believe a positive diagnosis for COVID-19 is likely, you will want to ensure that the following happens:

  • The employee goes home promptly, gets tested (and stays away from others while waiting for the test results), and identifies all individuals they were in close proximity to (within 6 feet) for 15 minutes or more through a 24-hour period. Read the MDH guidance on close contact and tracing for COVID-19.  To obtain the most up-to-date MDH guidance on COVID-19 protocols for Minnesota, call the Minnesota COVID-19 Hotline at (651) 201-3920.
  • The employee will need to stay away from the workplace for at least five days after their symptoms began.  The person is to wear a well-fitting mask for 10 days when around others.
    • According to MDH, for the employee to return to the office, all of the following must be true:
      • It has been at least five days since the person first felt sick.  Day zero is the day the individual’s symptoms began.  Day one is the first full day after the employee’s symptoms started.
      • The person has had no fever (thus, the person’s temperature is 100.4 degrees Fahrenheit or lower) for at least 24 hours, without using medicine that lowers fevers.
      • The person is feeling better such that their cough, shortness of breath, or other symptoms are better.
  • If the employee does not have symptoms, regardless of vaccination status, the employee will need to stay away from the workplace for five days after the employee tested positive. Day zero is the day the person was tested. The person is to wear a well-fitting mask for 10 days when around others. A person without symptoms wears a mask for 10 days starting on the day they were tested. According to MDH, if a person developed symptoms during this time, they must start over. Day zero is the day the person’s symptoms began.
  • Per MDH, those who cannot wear a well-fitting mask for the prescribed time period should remain out of the workplace for at least 10 full days. The 10 days start the day after the individual developed symptoms. If a person does not have symptoms, the 10 days start the day after the individual was tested, with the actual day the person began with symptoms or the day they were tested as day zero.

In the event a worker calls in to the city to notify the city he or she tested positive for COVID-19, a city will also want to work through the above analysis to determine whether the employee has been working in close proximity with other city workers recently. While the city will want to consult with their city attorney and call the Minnesota COVID-19 Hotline at (651) 201-3920 for the most current guidance, it is our understanding those close proximity workers will then be sent home by the city in an effort to stop the spread of infection in the workplace.

Cities will want to keep in mind, in accordance with the Minnesota Government Data Practices Act and Americans with Disabilities Act, the city cannot identify the infected worker’s name (unless the infected worker voluntarily agrees to sign a waiver for the city to share his or her diagnosis), and the city must safeguard any associated medical documentation the city possesses as part of this process to ensure others cannot access the protected information. In the EEOC’s Guidance on COVID-19 and the Americans with Disabilities Act (ADA), question B.5 notes that using a generic descriptor, such as telling employees that “someone at this location” or “someone on the fourth floor” has COVID-19, provides notice and does not violate the ADA’s prohibition of disclosure of confidential medical information. The EEOC adds, for small employers, co-workers might be able to figure out who the employee is, but employers in that situation are still prohibited from confirming or revealing the employee’s identity.

Read the outline of CDC cleaning protocols; please refer to “When to Clean and When to Disinfect.”

A2, Part B, Quarantine guidance if a person is exposed to someone with COVID-19

MDH updated its guidance on isolation and quarantine on Jan. 12, 2022.

A person with all recommended doses of COVID-19 or who has had COVID-19 in the past three months:

If an employee has completed all recommended doses of COVID-19 vaccine when eligible, including a booster or additional doses (refer to CDC link for a table outlining when a person is considered as up to date with their COVID-19 vaccines) or had COVID-19 in the past three months, they do not need to quarantine.  However, they must wear a well-fitting mask for 10 days when around others.  The 10 days begin from the day after the individual’s last close contact with someone with COVID-19. The actual day of close contact is counted as day zero. MDH also recommends the person gets tested at least five days after close contact, and if the employee tests positive, they will begin counting again from day zero and follow MDH Isolation guidelines.  The employee will still want to watch for symptoms for 10 days after close contact. If symptoms develop, the employee will need to stay out of the workplace and isolate and test immediately for COVID-19. The isolation counting time frame will begin again from day zero (day one is the first full day after the employee’s symptoms start).

An unvaccinated employee or an employee who is not up to date with COVID-19 vaccination, will need to quarantine for at least five full days:

Employees who are unvaccinated for COVID-19 nor up to date on COVID-19 vaccinations (refer to CDC link for a table outlining when a person is considered as up to date with their COVID-19 vaccines) must quarantine for at least five days. The employee will remain out of the workplace/stay at home for at least five full days after their last close contact with someone with COVID-19. The last day of close contact with someone with COVID-19 is considered day zero, with day one beginning the day after the employee’s last close contact. This COVID-19 exposed employee will need to wear a well-fitting mask for 10 days and should test on day five, if possible.  If the employee tests positive, the count will begin again from day zero and the employee is to follow MDH Isolation guidelines.  If the employee tests negative, then (1) the employee must complete the minimum five days in quarantine, and (2) wear a well-fitting mask around others.

A2, Part C, OSHA Logging for COVID-19 in the workplace:

OSHA issued guidance regarding how to investigate and record COVID-19 cases among your workforce. Minnesota OSHA (MNOSHA) Compliance follows federal OSHA record-keeping guidance, which is used across the country and needs to be consistent for national data comparison, with the exception that in Minnesota, low-hazard industries are also required to record injuries and illnesses.

Read OSHA’s Revised Enforcement Guidance for Recording Cases of COVID-19.

MNOSHA Compliance will enforce the record-keeping requirements of 29 CFR Part 1904 for all employers with employee COVID-19 illnesses. Recording a COVID-19 illness does not, of itself, mean the employer has violated any OSHA standard. And, pursuant to existing regulations, employers with 10 or fewer employees have no recording obligations; they need only report work-related COVID-19 illnesses that result in a fatality and report any employee’s in-patient hospitalization.

OSHA record-keeping requirements now mandate that COVID-19 is a recordable illness, and employers should record cases in their OSHA 300 log if all of the following conditions are fulfilled:

  1. The case is a confirmed diagnosis of COVID-19 as defined by the CDC.
  2. The case is “work-related,” which in OSHA regulations means that an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness.
  3. The case involves one or more of the general recording criteria specified by OSHA regulations, which are cases that involve one or more of the following: death, days away from work, restricted work, transfer to another job, medical treatment beyond first aid, loss of consciousness, or a significant injury or illness diagnosed by a physician or other licensed health care professional.

For additional assistance regarding OSHA reporting, please contact your League of Minnesota Cities Insurance Trust loss control representative.

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Q3. Can we terminate an employee who is not able to come to work due to COVID-19?

A3. Cities are strongly cautioned against terminating employees due to their inability to work during the COVID-19 pandemic. In addition to all of the normal employment protections (e.g., civil rights laws, collective bargaining agreements, the Americans with Disabilities Act), there are additional employee protections such as Minnesota Statutes, section 144.4196. This law provides protections for employees quarantined for up to 21 days. Be sure to review the Employment Accommodations During COVID-19 webpage for additional guidance.

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Q4. Are workers who contract or are exposed to COVID-19 eligible for workers’ compensation?

A4. There is no coverage for exposure to a disease under Minnesota’s workers’ compensation law, but individuals may be eligible for workers’ compensation benefits if they contract COVID-19. There’s also a new state law for injuries occurring on or after April 8, 2020, that provides a presumption for COVID-19 workers’ compensation claims, which applies to employees and volunteers working in certain occupations. The COVID-19 presumption for public safety employees and health care workers will expire Dec. 31, 2021, unless the Legislature acts to extend it. Please see Insurance Trust Coverage Response During COVID-19 Pandemic for more information.

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Q5. How do OSHA regulations apply to remote workers? What about ergonomics?

A5. The Department of Labor’s Occupational Safety and Health Administration (OSHA) does not have any regulations regarding telework in home offices. The agency issued a directive in February 2000 stating that the agency will not conduct inspections of employees’ home offices, will not hold employers liable for employees’ home offices, and does not expect employers to inspect the home offices of their employees. With respect to ergonomic issues, the League of Minnesota Cities Insurance Trust has field representatives you can consult. You can reach them at (651) 281-1200 or (800) 925-1122.

Read about simple ergonomics tips when working from home in the LMC Pipeline blog

Additionally, for employees working from home located outside of Minnesota, read more about the State Employment Law Considerations for Remote and Relocated Workers.

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Q6. If an employee has been diagnosed with COVID-19, when can they return to work?

A6. On Jan. 6, 2022, MDH updated its isolation guidance (guidance to stay home and away from others when a person tests positive for COVID-19 or has symptoms of COVID-19).   

For people testing positive for COVID-19 with symptoms:

  • The employee must remain out of the workplace until all three of the following are true:
    • It has been five days since the employee first felt sick. Day zero is the day the employee’s symptoms began.  Day one is the first full day after the employee’s symptoms started.
    • The employee has had no fever (i.e., their temperature is 100.4 degrees Fahrenheit or lower) for at least 24 hours, without medicine that lowers fevers.
    • The employee feels better; their cough, shortness of breath, or other symptoms are better.
  • If the employee is able to return to the workplace on day six, the employee must wear a well-fitting mask for days six through 10. For those who cannot wear a well-fitting mask, they will need to be out of the workplace for at least 10 full days. See also FAQ#A2 Part A of these FAQs.

For people testing positive for COVID-19 with no symptoms:

  • The employee may return to the workplace after five days from testing positive for COVID-19. For counting purposes, day zero is the day the individual tested.
  • The employee must wear a well-fitting mask in the workplace for days six through 10.
  • If the employee begins to develop COVID-19 symptoms, the counting time frame for being out of the workplace starts over, with day one as the first full day after symptoms began. Count your last day of close contact with someone with COVID-19 as day zero.
  • For those who cannot wear a well-fitting mask, they will need to be out of the workplace for at least 10 full days. See also FAQ#A2 Part A of these FAQs.

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Q7. How do cities process I-9s for new hires during the COVID pandemic?

A7. Due to the pandemic, the U.S. Citizenship and Immigration Services (USCIS) have implemented Form I-9 temporary policies to help employers working remotely through April 30, 2022 . The USCIS website offers examples demonstrating how DHS recommends employers notate Form I-9 when remotely inspecting employment authorization and identity documents and then subsequently performing the required physical inspection once normal operations resume.

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Q8. How can I learn more about the optional federal Families First Coronavirus Response Act (FFCRA) leaves under the American Rescue Plan Act of 2021?

A8. The League has compiled FAQs relating to this optional leave benefit for the period April 1, 2021-Sept. 30, 2021.
Read more about the FFCRA and get your questions answered.

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Q9. With the American Rescue Plan Act of 2021, in addition to the optional FFCRA leave, what are other employment-focused aspects I should be aware of?

A9. The American Rescue Plan Act includes employee benefit provisions including optional FFCRA leave, a federally financed COBRA subsidy for up to six months for eligible individuals, as well as other employee benefits, including temporary increases for dependent care benefits and extension of credits for paid leave when offered on a voluntary basis.

COBRA Subsidy: This is a pretty significant mandate of the law and the changes are technical in nature, involving prospective elections (i.e., a former employee could have gone without coverage for a period of time) and new notice requirements.

The Department of Labor issued sample COBRA notices on April 7, 2021.  The League of Minnesota Cities partnered with Hitesman Law, P.A., to edit the following sample COBRA notices for use by cities:

Darcy Hitesman of Hitesman Law, P.A., provided an overview on how to use these forms in this recorded webinar:

 

The Internal Revenue Service (IRS) has released a Q&A document about COBRA provisions in ARPA, and Hitesman has summarized the IRS guidance.

View the Summary of IRS Notice 2021-31 (IRS clarifications relating to ARPA COBRA Special Entry and Premium Assistance Requirements) (pdf)

Due to the complexity of the changes and the technical nature of federal and state benefit continuation in general, some cities have inquired about available benefits continuation services.

Learn more about the COBRA subsidy from consultants at Gallagher.

Please reach out to HRBenefits@lmc.org to obtain a list of consultants providing this service to assist your city in navigating federal and state continuation right and election periods.

Dependent care flexible spending information: The Act provides an optional one-time increase to dependent care flexible spending accounts for the 2021 calendar year, provided plan amendments are adopted by the last day of the plan year in which the increased limit is effective — for calendar year plans, that would be Dec. 31, 2021.

Learn more about employee benefits from consultants at Gallagher.

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Q10. Can a city require an employee to be vaccinated for COVID-19?

A10. Employers generally can require vaccinations if there is a business necessity. The answer also depends on a variety of factors and a city must consult with legal counsel before implementing any COVID-19 vaccination policy. Please refer to Q1 on the “Vaccination of City Employees” web page for additional information on whether a city can require employees to be vaccinated.

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