What Makes You Essential? Addressing Employees’ Fears Of Being Stopped Going To And Returning From Work

Seyfarth Synopsis: Many employers are asking whether they need to provide documentation to employees performing work during a shelter-in-place or similar order and increasingly, employees are demanding such documentation.  Should employers provide documentation to employees that explains their status as supporting essential, critical businesses?

Across the country, states and localities are enacting orders or laws that restrict which businesses may remain open and which employees may continue to report to the worksite.  These orders permit–and in some cases require–hundreds of thousands of workers to continue to report to work.  To date, most orders  either do not address documentation or expressly state that individuals do not need to carry documentation to prove that they are performing work for an essential business. While many of these orders do not require employees to carry papers identifying where they work, many employees are concerned that they will be stopped on the street or harassed.  They are scared to go to work and scared to be out on the streets.

Additionally some of these employees would find it difficult to articulate how or why their presence is deemed essential to the functioning of our infrastructure or the health and safety of local inhabitants.  One simple example to illustrate: grocery stores are clearly exempt–they feed us and supply us with necessities of daily life.  But who delivers those items for sale or cleans the store at night to keep you safe?  A third shift worker, traveling the mostly empty city streets at night on her way to work might appreciate some talisman in her pocket, whether necessary or not, to present to a wary officer or frustrated neighbor seeing her out and about.

More recently some states have begun instituting mandatory quarantines for travelers entering the state (see our blog on this topic here).  Hawaii’s requires a mandatory declaration upon arrival and quarantine, while Alaska’s requires businesses to submit a safety plan to a state agency detailing a plan to avoid the spread of COVID-19.  In other states, like Michigan, employers and partner businesses must supply–in writing–notices to workers, designating them as “critical infrastructure workers.”  All of the requirements only add to a worker’s angst.

To that end, employers may want to consider providing a letter (or better yet, a business card-sized document to fit in an employee’s wallet), verifying employment for those individuals still reporting to work at physical locations.  We have prepared sample templates for clients ranging from a printable business card template to lengthy letters detailing the employee’s and employer’s critical roles in the fight against the novel coronavirus.

While not legally necessary in all jurisdictions, such documentation may be a simple comfort to your employees.  Even if it is never used, it provides the employee with the right words to say if it is ever needed.

So what should be included in such a communication?  Again, these are unchartered waters.  However, employers may want to consider including some of the following:

  • contact information for someone who can quickly verify the individual’s travel purpose, if required and who will be available at the time the individual is traveling
  • the name of the business and, if different from the location of assignment, the address where the worker performs the work
  • reference to the order (or exemption from the order) permitting the worker to travel
  • the essential work (including the need to perform minimum basic operations for non-essential businesses) of the worker and/or business
  • tips for compliance with the applicable local and/or state orders (including resources like CDC guidelines for handwashing, social distancing, and when to stay home from work)

Not all of the above will make sense for every employer or business.  Businesses should consider carefully whether a one-size-fits-all communication is appropriate given their unique staffing and geographic locations. 

Finally, if you made it this far, a little treat, because, if nothing else, your business card can be used to legitimize your request for the Business Women’s Special.

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