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Anne Graham Bibeau is Vandeventer Black’s Labor & Employment Law Practice Group Manager. She focuses her practice on labor and employment law,alternative dispute resolution,commercial litigation,tax litigation, and the emerging hemp industry. In recent weeks, however, Anne and her team have been focused on 757 Business Recovery in the wake of COVID-19. 

Check out Anne's advice on our blog and leave a question for her to answer on Friday May 1st from 1 to 2 PM. 

 

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Craig Cope
How do I join a blog?
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Alisa Crider acrider
Craig Cope wrote:
How do I join a blog?


Hi Craig! We will begin the live message board at 1 p.m. so tune in right here in 20 minutes! Thanks for your interest. 
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Douglas L. Smith Doug Smith
Craig - feel free to post a question or comment now if you like - or just follow along starting at 1:00
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Alisa Crider acrider

Hi Anne! Welcome to our 757 COVID-19 Business Recovery Forum. We greatly appreciate your taking the time to post your blog and answer a few questions. I know in the Labor and Employment law practice you must me handling a myriad of issues for your clients right now. So, thank you for joining us!

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Anne G. Bibeau, Esq. abibeau
Thanks! I'm looking forward to it.

Hi Anne! Welcome to our 757 COVID-19 Business Recovery Forum. We greatly appreciate your taking the time to post your blog and answer a few questions. I know in the Labor and Employment law practice you must me handling a myriad of issues for your clients right now. So, thank you for joining us!

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Alisa Crider acrider
Anne, can you elaborate more on what a plan for handling employees who refuse to work might look like? What kinds of things will businesses need to have put down in writing and what types of communications will they need to send out to employees in advance of reopening?
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Anne G. Bibeau, Esq. abibeau
It’s important to ask why the employee won’t return to work. The employee may have a disability that makes him more susceptible to exposure. If that’s what the employee claims, ask for documentation from his doctor on his disability, how it impacts his ability to work, and when he’ll be able to return. Depending on the doctor’s response, under the Americans with Disabilities, you may need to grant the employee unpaid leave as a reasonable accommodation. Under the Families First Coronavirus Response Act, an employee may be entitled to paid leave if he cannot work for one of the reasons provided in that law. But if the employee is refusing to work because he’s afraid, or prefers the unemployment checks, there’s no legal protection for his refusal and you can terminate his employment.
Anne, can you elaborate more on what a plan for handling employees who refuse to work might look like? What kinds of things will businesses need to have put down in writing and what types of communications will they need to send out to employees in advance of reopening?
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Anne G. Bibeau, Esq. abibeau

When you’re reopening your business, you should notify employees in advance of your coronavirus plan, including the requirement that employees stay home if they are ill, and any changes you’re making to operations to reduce the risk of infections or comply with government directives.
Anne, can you elaborate more on what a plan for handling employees who refuse to work might look like? What kinds of things will businesses need to have put down in writing and what types of communications will they need to send out to employees in advance of reopening?
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Alisa Crider acrider
If a business plans to reopen when given the all-clear, but can’t necessarily open at full capacity, how should they approach bringing some employees back, but not necessarily all employees?
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Anne G. Bibeau, Esq. abibeau
You need to make a reasoned decision as to which employees are returned when. The decision can be based on what jobs will be needed. If multiple employees perform the same task but you do not have sufficient work to bring them all back, you need an objective basis for selecting between them, such as seniority, in order to defend against any claims of discrimination.

If a business plans to reopen when given the all-clear, but can’t necessarily open at full capacity, how should they approach bringing some employees back, but not necessarily all employees?
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Alisa Crider acrider
Thanks Anne. That's helpful.

You mention having to post an FFCRA notice in the workplace. What are some other essential pieces of information that should be posted prominently in work environments?
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Anne G. Bibeau, Esq. abibeau
You should post prominently the business’s coronavirus policy, which should address any operational changes, social distancing, hand washing, staying home when ill, reporting potential exposure, disinfection plans, and other precautions.

Thanks Anne. That's helpful.

You mention having to post an FFCRA notice in the workplace. What are some other essential pieces of information that should be posted prominently in work environments?
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Joyce Burns
Anne, is there a best practice for setting up contact tracing - we have offices with employees who have set hours and independent contractors who come and go.  Any need to track customers who come into a location?
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Douglas L. Smith Doug Smith
You should post prominently the business’s coronavirus policy, which should address any operational changes, social distancing, hand washing, staying home when ill, reporting potential exposure, disinfection plans, and other precautions.

Anne - for small businesses that do not have access to consultants and others to guide them what are some good sources of information they can access to start developing policies and procedures around COVID 19
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Anne G. Bibeau, Esq. abibeau
Hi Joyce! There's no legal requirement to track customers who come into the location, but it would be a good idea to do that if that's feasible. You can ask your employees and independent contractors to keep a log of whom they meet with each day. Otherwise, you'll have to rely on their memories in trying to research who needs to be notified of potential exposure.

Joyce Burns wrote:
Anne, is there a best practice for setting up contact tracing - we have offices with employees who have set hours and independent contractors who come and go.  Any need to track customers who come into a location?
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Anne G. Bibeau, Esq. abibeau
Hi Doug,
The CDC has several web pages devoted to this topic. https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html That's a good place to start. You can also look to the Virginia Department of Health's site on COVID-19. https://www.vdh.virginia.gov/coronavirus/

Anne - for small businesses that do not have access to consultants and others to guide them what are some good sources of information they can access to start developing policies and procedures around COVID 19
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Alisa Crider acrider
In your work with area employers, what are some ways you’ve seen business models shifting, and how do you see those shifts perhaps staying relevant even after employees return to work?
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Anne G. Bibeau, Esq. abibeau
The surge in telework is perhaps the most dramatic change. It will be interesting to see whether after the crisis some businesses decide that those positions can continue to be performed remotely. Ultimately, that could reduce overhead costs for some businesses. I expect to see other long-term restructuring as businesses learn to make do with reduced staffs and budgets. Another interesting change is the move to different technologies for video conferencing and work collaboration. Some of those changes will be here to stay.

In your work with area employers, what are some ways you’ve seen business models shifting, and how do you see those shifts perhaps staying relevant even after employees return to work?
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Emanuel Baker KINGCUTS
Hello Anne thank you for this time. I am in the barbershop and salon industry and social distancing is a challenging task. What would you suggest be my approach for reopening and do you feel our industry will experience added restrictions due to the potential lack of social distancing. 
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jschulman
Hi Anne,

Thanks for all the helpful thoughts to consider as we reopen. How about employees who cannot return because they are caring for kids or grandkids that are not currently in school. Would employees in this situation be entitled to unpaid leave? Would it depend on whether the child they are caring for is a dependent? To take a step further, what happens if grandparents are taking care of grandkids while the parent is either quarantined or sick with COVID?
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Amy Jordan ajordan
With school buildings and day cares closed, how should employers address childcare challenges?    
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Douglas L. Smith Doug Smith
jschulman wrote:
Hi Anne,

Thanks for all the helpful thoughts to consider as we reopen. How about employees who cannot return because they are caring for kids or grandkids that are not currently in school. Would employees in this situation be entitled to unpaid leave? Would it depend on whether the child they are caring for is a dependent? To take a step further, what happens if grandparents are taking care of grandkids while the parent is either quarantined or sick with COVID?


Joash - I saw the following announcement this morning that may lead to some solutions to your question: 

Richmond, Va. (April 29, 2020) – The Virginia Early Childhood Foundation (VECF) has assembled a blue-ribbon task force to develop an assertive strategic plan with recommendations for structural shifts and improved policies and practices to stabilize and strengthen Virginia’s child care industry – considered essential personnel per COVID-19 directives – as the Commonwealth gets back to work and rebuilds its economy.

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Anne G. Bibeau, Esq. abibeau
Hi Emanuel - I do expect there to be additional restrictions on your industry when it is allowed to reopen because of the necessity for proximity in your work. For example, there may be limits on the number of customers you have in the shop at any one time and requirements that both the barber and the customer don face masks. It would be a good idea to purchase masks now for this purpose. I'm sure you already disinfect equipment between customers, but you may want to post fliers for your customers about the disinfection and other steps you're taking. One of your challenges will be to make customers feel that getting a haircut is safe.
Hello Anne thank you for this time. I am in the barbershop and salon industry and social distancing is a challenging task. What would you suggest be my approach for reopening and do you feel our industry will experience added restrictions due to the potential lack of social distancing. 
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Cathy Lewis Cathy Lewis
Hi, Anne, 
In addition to the excellent suggestions above, what in the coronavirus playbook applies to contractors who work with employees? (specifically, I'm thinking about criteria that might affect a contractor's ability to return to the job site immediately). 
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Emanuel Baker KINGCUTS
Thank you Anne, yes we are also taking every proper precautionary measure we can. 
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Bryan K. Stephens
Anne, As we at the Chamber look ahead to hosting events again we want to take all the necessary precautions to keep our guests safe.  Are there any legal issues with mandating individuals have their temperature taken prior to entering a venue?  
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Anne G. Bibeau, Esq. abibeau
Hi Josh -

The Families First Coronavirus Response Act (FFCRA) requires employers with fewer than 500 employees to provide up to 12 weeks of paid emergency Family and Medical Leave Act (EFMLA) leave to employees who are unable to work or telework because they are caring for their minor sons or daughters whose schools or care providers are closed due to the crisis. The first two weeks of the leave may be unpaid, or the employee can opt to use any other paid leave the employer provides or to use the FFCRA's emergency paid sick leave (EPSL). Both the EPSL and the remaining 10 weeks of EFMLA must be paid at 2/3 the employee's regular rate of pay, up to $200 per day and $12,000 in the aggregate. There is a refundable tax credit for these leave payments. Note that this leave is only available for an employee caring for his or her own child, or a child for whom the employee stands in loco parentis. Grandparents normally wouldn't be allowed to take the leave for their grandchild unless they are in loco parentis to the child. 
jschulman wrote:
Hi Anne,

Thanks for all the helpful thoughts to consider as we reopen. How about employees who cannot return because they are caring for kids or grandkids that are not currently in school. Would employees in this situation be entitled to unpaid leave? Would it depend on whether the child they are caring for is a dependent? To take a step further, what happens if grandparents are taking care of grandkids while the parent is either quarantined or sick with COVID?
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Anne G. Bibeau, Esq. abibeau
Hi Amy, that would fall under the emergency Family and Medical Leave Act (EFMLA) leave and the emergency paid sick leave (EPSL), both established by the Families First Coronavirus Response Act (FFCRA). This paid leave is available for employees of businesses with fewer than 500 employees when the employee is unable to work or telework because the employee's minor son or daughter's school or day care is closed because of the COVID-19 crisis. Although the FFCRA does not require the employer to grant EFMLA on an intermittent basis, the employer and employee may agree to that--if they do, that would allow the employee to work part of the week and care for his/her child the other part of the week.
With school buildings and day cares closed, how should employers address childcare challenges?    
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Anne G. Bibeau, Esq. abibeau
Hi Cathy,
The business should apply the same safeguards to contractors as to employees to try to reduce the risk of infection in the workplace. The contractor's ability to take time off will depend on the terms of his or her contract, which may address when the contractor can be absent. Otherwise, the contractor will need to work out an arrangement with the business on how to address those issues. The paid leave requirements of the Families First Coronavirus Response Act do not apply to independent contractors.
Hi, Anne, 
In addition to the excellent suggestions above, what in the coronavirus playbook applies to contractors who work with employees? (specifically, I'm thinking about criteria that might affect a contractor's ability to return to the job site immediately). 
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Anne G. Bibeau, Esq. abibeau
Hi Bryan,
You can require temperature taking before individuals enter the venue. You need to put some planning into that to avoid bottlenecks and clusters of people, which would only increase the risk of infection. Also, don't assume that anyone who passes the temperature test is free of the virus, as there are numerous reports of people without fever spreading the virus. Thus, even with temperature checks it will be important to follow all other guidelines, such as social distancing and handwashing.
Anne, As we at the Chamber look ahead to hosting events again we want to take all the necessary precautions to keep our guests safe.  Are there any legal issues with mandating individuals have their temperature taken prior to entering a venue?  
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Alisa Crider acrider
Thank you Anne for the great discussion! Thanks again for all the good work Vandeventer Black, LLP is doing in our community!
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Anne G. Bibeau, Esq. abibeau
Thanks! And thanks for all the great questions everyone. This was fun!
Thank you Anne for the great discussion! Thanks again for all the good work Vandeventer Black, LLP is doing in our community!
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