These suggestions and comments are submitted on behalf of the World Floor Covering Association ("WFCA"), a non-profit business association of flooring retailers, commercial contractors, and installers. WFCA has over 8,300 members, with the vast majority being small businesses.
WFCA appreciates the opportunity to submit suggestions and comments to the Department of Labor (DOL) regarding Opening America's Workplaces Again. The responses and comments provided below are based on information provided by WFCA members, and questions members have asked regarding how to safely reopen their businesses. WFCA addresses each of the issues raised in DOL's notice.
1. Reopening businesses: The Center for Disease Control ("CDC") and the Occupational Safety and Health Administration ("OSHA") have issued guidance on preparing workplaces to guard against the spread of COVID-19. WFCA members have four major concerns as they implement these guidelines and begin reopening their businesses.
a. Testing Employees: To reopen safely, a business must be able to ensure its employees do not have the coronavirus or have been exposed to the virus. The current Equal Employment Opportunity Commission ("EEOC") guidance allows mandatory medical testing of employees if it is "job related and consistent with business necessity." This standard leaves open what is job related and business necessity. Given that COVID-19 is highly contagious, WFCA recommends that businesses are allowed to mandate medical test for the coronavirus for all employees.
b. Liability: A business may face liability if an employee or customer becomes ill with the coronavirus, even if the business followed all the recommendations of the CDC and OSHA. WFCA recommends that DOL make clear that compliance with the CDC and OSHA guidelines in existence at the time, creates an assumption that the business has taken reasonable precautions and a business is not liable if an employee or customer becomes ill with the coronavirus. Given that CDC and OSHA may issue new or updated guidance, the assumption should be based on the guides in existence at the time.
c. Customer Response: To operate safely, businesses should be allowed to impose restrictions on customers visiting their facilities, such as having their temperature taken before entering the facility or store, wearing face masks, using disinfectants provided, limiting the number of customers, and similar precautions. There is the risk of customers objecting to following a business's safety rules, leading to lawsuits, with claims of failing to provide reasonable accommodations or allegations of discrimination. To limit the risk, DOL and CDC should issue guidelines on what a business can do to limit the risks of customers spreading the coronavirus. The guidelines should provide that as business following those guidelines is deemed to have made reasonable accommodations and does not discriminate if applied fairly to all customers.
d. Customer Violence: As has been seen already, customers may get violent with the employees enforcing safe practices at a business. This could lead to lawsuits by other customers and employees claiming the business did not take reasonable precautions to protect customers and employees. This creates the dilemma of either following the CDC and OSHA guideline and exposing employees and customers to other customer's reaction, or not implementing the guidelines and risk exposing customers and employees to the coronavirus. Again, DOL needs to ensure that following CDC and OSHA guideline creates a safe place of business.
2. Commuting safely: As with many businesses, WFCA members are concerned with the safety of its employees who commute to work. WFCA members, however, do not have any special expertise on this issue, and leave it to the experts to suggest ways to minimize exposure to COVID-19 while commuting.
3. Working safely: As explained above in response to issue 1, a business complying with the current CDC and OSHA guidelines should be immune from lability.
4. Accommodating members of vulnerable populations: The EEOC has made it difficult to provide the added protection for employees with health issues making them vulnerable to the coronavirus. In its most recent guidance, EEOC advised that employers violate the Americans With Disabilities Act "(ADA") if it excludes employees from working "solely because the worker has a disability that places him at a 'higher risk for severe illness'" making him vulnerable to contracting COVID-19. Technical Assistance Questions and Answers – Updated, at G.4 (May 5, 2020) (emphasis in original). Rather, the EEOC requires an employer to show it made an "individualize assessment based on a reasonable medical judgment" that the employee's disability poses a "direct threat" to the employee's health. Id. The risks of COVID0-19, which is highly contagious and has already infected over 1 million U.S. residents, should not be treat as just another disability issue. The need to contain it and protect vulnerable populations requires greater flexibility. If an employee has a health issue that is recognized to make him vulnerable to contracting the coronavirus, that should be sufficient to satisfy the "direct threat" requirement.
Similarly, current data show that individuals 65 years and older are the hardest hit by the coronavirus. Yet, an employer risks violating the Age Discrimination in Employment Act ("ADEA") if it asks these older employees to stay home during the CIVID-19 pandemic. Similarly, if a fellow employee comes down with the coronavirus, putting these vulnerable employees on a 15-day furlough to protect them, may also be considered discrimination based on age or disability.
WFCA is not suggesting that an employee can just exclude vulnerable employees from working. Instead, an employer should be allowed to raise the issue with the vulnerable employee. The employer must then determine if there is a reasonable accommodation that would minimize the risk of contracting COVID-19. If there is not reasonable accommodation acceptable to the employee and the employee still insists on coming to work, the employer should not be liable if the employee contracts the coronavirus.
5. Supporting America's families: Many, if not the majority, of WFCA members are small-family owned businesses. To reopen their business safely, will take time, expense, and a possible decrease in business. It is key that financial aid be provided during this phase of "Opening America's Workplaces Again." As explained above, one key element will be to limit the potential liability of these small businesses as they reopen for business and provide flexibility on minimizing risks to employees and customers
6. Reducing regulatory burdens: WFCA members have three suggestions to reduce the regulatory burden on small businesses as they work to reopen their businesses.
a. Training and Apprentice Programs: After the last recession, the flooring industry was plagued by a severe shortage of skilled installers. Part of the difficulty in meeting the demand was the very restrictive rules on training and apprenticeship programs. DOL will need to consider allowing accelerated training and apprentice programs to meet the demand in the flooring and other construction industries.
b. Independent Contractor Standards: As America emerges from the COVID-19 pandemic, the opportunities for individuals to work independently and start new businesses should be encouraged. Yet, the variety of independent contractor standards make it difficult for an independent contractor. Many small businesses are reluctant to deal with some independent contractors for fear of them being deemed employees. The rebooting of America's economy provides a good opportunity to re-evaluate these standards and encourage the entrepreneurial spirit epitomized by independent contractors.
c. Prevailing Wage Under Davis-Bacon Act: Repairing and rebuilding America's infrastructure will be a major stimulus to rebooting the economy. These projects could help revitalize many small businesses in the construction industry, like WFCA's members. One of the obstacles is the prevailing wages and fringe benefits mandate under the Davis-Bacon Act. The prevailing rate can lead to confusion and higher costs. DOL should consider allowing a small business exception to the prevailing rate, and require only that these small businesses pay the rate they pay on non-government projects. This would allow more small businesses to participate in government funded construction and help accelerate the economic recovery of small businesses. DOL should also consider proposing to amend the Davis-Bacon Act to increase the threshold amount for its application. The current $2,000 threshold, set in 1935, is out of date and essentially means every contract is covered. The administrative costs alone would be too great for most small businesses to incur for a $2,000 contract.
On behalf of its members, WFCA appreciate this opportunity to participate in the dialogue regarding reopening America's economy, and looks forward to the next steps to ensure a safe and successful reopening of the American economy.