City Employment Issues During COVID-19 Pandemic

Published: April 2, 2021

The content and layout of FAQs on this webpage was entirely revised on on April 1, 2021.

(Updated April 14, 2021)

Note: 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. What new state employment laws have been passed or amended in response to the COVID-19 pandemic that are applicable to cities?

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

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?

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?

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

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? (Update April 14, 2021)

Q10. Do employers have to pay employees for unauthorized telework hours? Do I have to pay employees for hours worked even when they do not report those hours?

Q1. What new state employment laws have been passed or amended in response to the COVID-19 pandemic that are applicable to cities?

A1. There has been a flurry of actions at the state and federal level taken to assist employees and employers with this situation. To date, these are the state actions and implications to local government employers. Read more about about federal actions.

Executive Order 21-11 — Adjusting Limitations on Certain Activities and Taking Steps Forward

With Minnesota’s daily COVID-19 case numbers continuing to trend downward and vaccinations increasing, Gov. Walz issued E.O. 21-11 on March 12, 2021, with an effective date for the provisions below of Monday, March 15, 2021, at 12 p.m.  General highlights of E.O. 21-11 include:

  • Mask and face coverings continue to be required. Although other components of previously issued E.O.s were rescinded as of noon on March 15, the requirement to wear mask and face coverings remains in full force and effect.
  • At-risk persons. Persons living within the state who are at risk of severe illness from COVID-19, as defined by E.O. 20-55, and have not yet been vaccinated or cannot be vaccinated, are strongly encouraged to stay at home and follow the provisions of E.O. 20-55.
  • Unnecessary travel discouraged. Consistent with federal guidance and to protect our neighbors, Minnesotans are encouraged to stay close to home and are discouraged from engaging in unnecessary travel, particularly to other states or countries. The E.O. offers strong encouragement to follow MDH Quarantine Guidance for persons arriving in Minnesota following travel to other states or countries.
  • Social gatherings:
    • Indoor social gatherings. Indoor social gatherings are discouraged, but indoor social gatherings up to a maximum of 15 people (without household limits) are permitted as long as participants adhere to the precautions for social gatherings on the Stay Safe Minnesota website.
    • Outdoor social gatherings. Outdoor social gatherings up to a maximum of 50 people (without household limits) are permitted as long as participants adhere to the precautions for social gatherings on the Stay Safe Minnesota website.
    • The limits on social gatherings do not apply to legislative and other governmental meetings as well as other defined situations within the executive order. Remote meetings are strongly encouraged whenever possible by state or local authority.
  • Youth sports. Pod sizes are increasing to 50 for outdoor activities. (Refer to the executive order for more details.)
  • Religious services. No COVID-19-related occupancy limits, but social distancing required.

The modifications to E.O. 21-11 impacting workers and businesses specifically include the following and, unless otherwise noted, were effective Monday, March 15, 2021, at 12 p.m.:

  • Remote work continues to be strongly recommended.
    • Until April 14 at 11:50 p.m., employees who can work from home must continue to do so.
    • Beginning April 15, as more Minnesotans are vaccinated, work from home will no longer be required, but it will continue to be strongly recommended.
    • All employers should continue to accommodate employees who wish to work from home. Employers are also strongly encouraged to implement reasonable accommodations for at-risk employees or employees with one or more members of their household who have underlying medical conditions and are not yet eligible for vaccination.
  • All establishments must comply with the applicable guidance available on the Stay Safe Minnesota website, including development and implementation of a COVID-19 Preparedness Plan in accordance with applicable guidance available on the Stay Safe Minnesota website.
  • All establishments must ensure that no more than six customers are seated at one table and close each day for on-premises consumption between the hours of 11:00 p.m. and 4 a.m. Delivery service, window service, walk-up service, and drive-up service continues to be encouraged.
  • All establishments must continue to adhere to socially distancing requirements. All of the updated guidance continues to require venues to maintain a distance of 6 feet between guests to reduce the spread of the virus.
  • Barber shops, salons, and establishments providing personal care services. Removed the COVID-19-related occupancy limit, but social distancing continues to be required.
  • Restaurants and bars. Increased allowable occupancy to 75% (up from 50%) of the normal occupant capacity, with a limit of 250 people. Physical distancing of at least 6 feet is maintained between parties at different tables. The limits apply separately indoors and outdoors. Bar seating increased to parties of 4.
  • Public pools. Increased allowable capacity to 50% (up from 25%) of the normal occupant capacity and must not exceed 250 people. Pools located within a place of public accommodation, such as a fitness center, will need to count occupants of the pool toward the maximum occupant facility limitation (see gyms, fitness centers, and recreation centers below).
    • Beginning April 1, indoor pool areas with sufficient normal occupant capacity may exceed 250 people in accordance with the applicable percentage limitations and guidance available on the Stay Safe Minnesota website. Total indoor occupancy must not exceed 1,500 people.
    • Beginning April 1, outdoor pool areas with sufficient normal occupant capacity may exceed 250 people in accordance with the applicable percentage limitations and guidance available on the Stay Safe Minnesota website. Total outdoor occupancy must not exceed 10,000 people.
  • Indoor gyms, fitness centers, recreation centers must not exceed 50% percent (up from 25%) of the normal occupant capacity and must not exceed 250 people in the entire facility. Outdoor classes can increase to 50 people.

Beginning April 1, indoor spaces with sufficient normal occupant capacity may exceed 250 people in accordance with the applicable percentage limitations and guidance available on the Stay Safe Minnesota website. Total indoor occupancy for indoor spaces must not exceed 1,500 people.

For event and entertainment venues, such as theaters, museums, stadiums, conference centers, both indoor and outdoor, the occupancy increases to 50%, up from 25%, with a limit of 250.

  • Seated indoor venues. As of April 1, venues with normal occupant capacity over 500 can add additional guests, with an additional 15% of their capacity over 500, with a limit of 3,000 people.
  • Non-seated indoor venues. As of April 1, venues with normal occupant capacity over 500 can add additional guests, with an additional 15% of their capacity over 500, with a limit of 10,000 people.
  • Seated outdoor venues. Effective April 1, venues with normal occupant capacity over 500 can add additional guests with an additional 25% of their capacity over 500, with a limit of 10,000 people.
  • Non-seated outdoor venues. Effective April 1, venues with normal occupant capacity over 500 can add additional guests, with an additional 10% of their capacity over 500, with a limit of 1,500 people.

Additionally, if you are seeking any assistance interpreting industry guidance the state offers regarding COVID-19 protocol, you can also contact DEED at (651) 259-7114 or email the state at deed.customerservice@state.mn.us.

For reference, as of 12 p.m. on Monday, March 15, E.O. 21-11 replaced rescinded E.O.s 21-07 and 21-01.


Executive orders on unemployment insurance

Beginning March 12, 2021, DEED will be mailing out notices to reimbursing employers advising:

  • Billing will remain suspended until Quarter 2 – 2021. This means reimbursing employers will not receive an unemployment insurance bill before July 2021.
  • Reimbursing employers will not be required to repay the portion of unemployment benefit charges that the federal government reimburses to the Unemployment Insurance Program.
  • Mn Unemployment will begin making adjustments to employer accounts over the next several months and anticipates that many reimbursing employers will see a large reduction in benefit charges, but some charges unrelated to the pandemic may remain on cities accounts. The state asks that employers wait until they apply all available financial relief for the entire 2020 calendar year before contacting them about the status of specific benefit charges. DEED will not send cities quarterly bills until their review is finalized and anticipates they will likely turn billing back on in mid-2021, but will let cities know before they do.

The American Rescue Plan signed by President Biden on March 11, 2021, included additional relief for reimbursing employers, but DEED is awaiting official implementing guidance on that from the U.S. Department of Labor, so no details are available at this time.

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) to keep their workplaces safe, and the Department of Labor 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 section “Who needs to quarantine?” in the MDH Quarantine Guide for additional guidance.

Employers should also consider flexible leave policies for their employees in these circumstances and consider whether they will be offering the optional FFCRA leave as part of the American Rescue Plan Act of 2021 since an employee seeking or awaiting the results of a COVID-19 test due an exposure if an employer has requested the COVID-19 test can be a qualifying event for the leave.  Refer to this link for FAQs on the 2021 optional FFCRA leave. Learn more with these FAQs on the 2021 optional FFCRA leave.

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:

  • Send the employee home promptly and also ask the employee to identify all individuals he or she was 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.

While COVID-19 symptoms may appear 2-14 days after an exposure to the COVID-19 virus, the CDC notes that infected people can spread the virus 48 hours before the onset of symptoms. 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. The MDH FAQs reiterate this with: “Employers can generally identify that an ‘employee has tested positive for COVID-19’ or that an employee ‘has been exposed to COVID-19,’ but the employee should not be identified. In addition to the guidance from the Minnesota COVID-19 hotline, cities can also consult the MDH website for COVID-19 Guidance for Businesses and Employers. This guidance includes staying home until 14 days after last exposure, in most cases, based on the time it takes to develop illness, maintaining social distance from others, and self-monitoring for symptoms (i.e., checking temperature twice a day to watch for fever, cough, or shortness of breath). Please refer to FAQ #Q5 for situations where shorter quarantine periods may apply. The CDC guidance on sick employees notes that employers should not require a sick employee to provide a negative COVID-19 test result or healthcare provider’s note to return to work.

A2, Part B, These employees may not need to quarantine:

The MDH guidance on quarantine notes that the following people do not need to quarantine following a COVID-19 exposure include:

  • Persons who have recovered from COVID-19 in the past 90 days, and if all of the following are true:
    • The person’s illness was confirmed with a positive lab test in the past 90 days.
    • The person has fully recovered.
    • The person does not currently have any symptoms of COVID-19.
  • If an individual has completed COVID-19 vaccination (two doses in a two-dose series or one dose in a one-dose series) and if all the following are true:
    • The COVID-19 exposure was at least 14 days after the person’s vaccination series was fully completed.
    • The person does not currently have any symptoms of COVID-19.

Read the guidelines for people who live or work in a health care or long-term care facility, have been vaccinated, and have a COVID-19 exposure.

Even after a person has recovered from COVID-19 or is fully vaccinated they should still continue to stay distanced, wear a mask that fits well, wash their hands often, and follow other precautions. For more information, read CDC: When to Quarantine.

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. The FAQs on the state of Minnesota website specifically note that an employer may not fire or otherwise discriminate against an employee for a good faith refusal to perform assigned tasks if an employee has asked the city to correct hazardous conditions but they remain uncorrected. 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. 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

For guidance on OSHA Logging for COVID-19 in the workplace, see FAQ #Q2.
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. Generally speaking, a city will want to rely on a medical provider to classify whether an employee is on quarantine. Under state health law, if an employee has contracted or been exposed to COVID-19, the MDH can recommend the employee isolate themselves. Employees who are diagnosed with COVID-19 should follow guidance from public health officials and their doctor before being released from isolation and thus returning to work.

While the safest option is to stay home and away from others for 14 days, MDH released two additional options to lessen self-quarantine periods for situations where a person is symptom free who had close contact with a person with COVID-19.  In certain situations, a self-quarantine may end after 10 days or after seven days with a negative COVID-19 test:

  • 10 days – Provided a person remains symptom free, no one in the home has COVID-19/the person does not reside in a building with others, the person wears a mask correctly, remains six feet away from other people and watches for symptoms through day 14, the self-quarantine period can be reduced to 10 days.
  • 7 days – Provided a person remains symptom free, the person tests at least five full days following close contact with someone with COVID-19 and the test is negative, no one in the home has COVID-19/the person does not reside in a building with others, the person wears a mask correctly, remains six feet away from other people and watches for symptoms through day 14, the self-quarantine period can be reduced to 7 days. As the MDH guidance on quarantine notes, a quarantine period cannot end before seven days for any reason.

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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 March 31, 2021. 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. Read more about USCIS’s temporary policy guidance.

Learn more from the Department of Homeland Security’s website

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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:

 

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. Do employers have to pay employees for unauthorized telework hours? Do I have to pay employees for hours worked even when they do not report those hours?

A10. In FAQ #14 of COVID-19 and the FLSA, the DOL states , in accordance with the FLSA, employers must pay employees for all hours of work (and telework) actually performed, including overtime work, if the employer knew or had reason to believe the work was performed. The DOL notes, this is true even of hours of telework that you did not authorize.  Employers also must compensate employees for unreported hours of telework that the employer knew or had reason to believe had been performed. However, a city is not required to compensate employees for unreported hours of telework that you have no reason to believe had been performed, i.e., where you neither knew nor should have known about the unreported hours.  In most cases, a city may satisfy the obligation to compensate teleworking employees by providing reasonable time-reporting procedures and compensating for all reported hours.

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