Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On August 11, 2020, Nevada Governor Sisolak signed Senate Bill No. 4 (SB 4) into law. While SB 4 received significant media attention for its provision shielding businesses from liability related to COVID-19 under certain circumstances, SB 4 also includes a host of significant new measures meant to enhance worker safety for many Nevada employers in the hospitality industry. Such employers will want to pay special attention to its provisions mandating cleaning standards and other related protocols to combat COVID-19. Importantly, the required protocols include, among other things, a response plan allowing testing and paid time off for employees who are experiencing symptoms of COVID-19 or who have been exposed to the novel coronavirus.
Which Employers Must Adopt the Protocols and Standards?
Within 20 days of the governor’s approval, SB 4 requires the director of the Department of Health and Human Services to adopt initial regulations mandating that some but not all employers in Nevada establish standards and protocols aimed at limiting the transmission of COVID-19. But which employers will be required to establish the required standards and protocols?
The new regulations will apply to “public accommodations facilities.” Under SB 4, a “public accommodations facility” is:
a hotel and casino, resort, hotel, motel, hostel, bed and breakfast facility or other facility offering rooms or areas to the public for monetary compensation or other financial consideration on an hourly, daily or weekly basis.
Note further that the relevant provisions of SB 4 apply only to counties whose populations meet or exceed 100,000 people. According to the Legislative Counsel’s Digest of the bill, this includes Clark and Washoe Counties.
The legislation also provides that the director’s regulations will apply during “any period in which a public health emergency due to SARS-CoV-2 has been declared by the Governor and remains in effect.” In addition, the regulations apply on each day that the rate of positive COVID-19 test results for the county exceeds 5% in any rolling 14-day period within the preceding 90 days, or on each day that the number of new cases in the county exceeds 100 per 100,000 residents in the same periods.
What Must the Protocols Include?
Under SB 4, the director must adopt regulations mandating that covered public accommodations facilities establish three sets of protocols to limit the spread of the novel coronavirus and mitigate its effects. The first set of protocols requires covered facilities to establish a set of finite “standards for cleaning that are designed to reduce the transmission of SARS-CoV-2.” Required standards include, among other things, the “use of cleaning products that are qualified by the United States Environmental Protection Agency for use against SARS-CoV-2” and regular cleaning of high-contact areas and items. Additionally, employers operating a covered facility must post in certain conspicuous locations a one-page summary of the standards adopted in accordance with the first set of protocols and a list of key contact persons at public health agencies. Upon request, they must also provide employees or their bargaining representatives a physical or electronic copy of the standards adopted. Finally, covered facilities are prohibited from advising or incenting guests to decline daily in-room housekeeping.
The second set of mandatory protocols requires covered facilities take certain steps other than cleaning procedures to limit the transmission of COVID-19. The protocols involve the implementation of a finite set of policies regarding social distancing, hygiene, and personal protective equipment. Among other requirements, the policies must include encouraging guests and employees to remain six feet apart, structuring employees’ breaks and workstations to facilitate social distancing, providing access to hand sanitizer and instructions on the frequency of handwashing, and distributing masks and other appropriate protective equipment to employees at no cost to them. In addition, the protocols must also include a requirement that staff be trained “concerning the prevention and mitigation of SARS-CoV-2 transmission in the manner prescribed by the Director.”
The third set of required protocols requires covered facilities to “establish, implement and maintain a written SARS-CoV-2 response plan designed to monitor and respond to instances and potential instances of SARS-CoV-2 infection among employees and guests.”1 The response plan must designate a person or set of persons to oversee and carry out the plan and its COVID-19 testing requirements. The plan must further designate an area “where employees will check in every day to receive contact-free temperature measurement and review questions to screen for exposure to SARS-CoV-2.”
The response plan mandates testing of employees in four circumstances:
- Each new employee and each employee returning for the first time since March 13, 2020, must undergo testing, if testing is available.
- Each employee known to have had close contact2 with a guest or employee diagnosed with COVID-19 must be informed of the exposure within a maximum of 24 hours or as soon as practicable and must be tested.
- Each employee that has a reasonable belief or has been advised that they have been in close contact with someone with COVID-19 must be tested.
- Each employee who discloses that they are experiencing symptoms of COVID-19 must be tested.
Testing must be at no cost to the employee and may be performed on-site or at a testing facility selected by the employer. The plan must prohibit symptomatic employees from returning to work while they await the results of their test, and it must include a provision requiring guests to leave and seek medical attention if they report testing positive for the novel coronavirus or a COVID-19 diagnosis.
Paid Time Off Requirements
Employees who are tested for reasons 2, 3, or 4 are entitled to:
- Up to three days of paid time off to await testing and results; and
- Additional paid time off if documentation shows a delay exceeding three days in testing or receiving test results.
Notably, this paid time off entitlement applies each time an employee is tested for reason 2, but only the first instance the employee is tested for reason 3 and 4.
SB 4 also mandates that where an employee tests positive for the novel coronavirus or is otherwise diagnosed with COVID-19, the response plan must allow the employee “to take at least 14 days off” if the employee “is working or has been recalled to work at the time of the result or diagnosis.” The plan must provide that “at least 10” of those 14 days will consist of “paid time off.”
The paid time off benefits must not be deducted from a paid time off benefit provided by the employer by virtue of NRS 608.0197 or other policy or contract. However, it may be deducted from paid sick leave provided pursuant to the emergency paid sick leave provisions of the Families First Coronavirus Response Act. The paid leave benefits are to be calculated at the employee’s base rate of pay.
Notably, employers operating covered facilities may submit a request to the director to increase or decrease the days provided under this type of leave. The director may grant the request, “if it is consistent with the recommendations of the Centers for Disease Control and Prevention of the United States Department of Health and Human Services concerning time off for employees who test positive for SARS-CoV-2 or are otherwise diagnosed with COVID-19.”
SB 4 provides that its provisions relating to the required response plan do not preclude an employee who is exposed to the novel coronavirus or who is diagnosed with COVID-19 from “choosing to perform his or her duties remotely instead of taking time off if the job duties of the employee are conducive to remote work.” The legislation does not expressly state whether an employer operating a covered facility may require such an employee to work remotely, however.
Covered employers are encouraged to fully review SB 4 and the regulations soon to be issued and develop or amend an existing COVID-19 response plan to comply with the new requirements. Moreover, covered employers should review current time off benefit processes to ensure paid time off benefits will be administered to comply with SB 4, consider how to implement the new testing requirements, and ensure adequate contact tracing resources are in place.
1 Under certain conditions, covered facilities may be required to submit a written SARS-CoV-2 response plan to a health authority or the Nevada Gaming Control Board.
2 The Director’s regulations must “define the term ‘close contact’ to have the meaning most recently ascribed to it by the Centers for Disease Control and Prevention of the United States Department of Health and Human Services for the purpose of determining when a person has been in close contact with another person who has tested positive for SARS-CoV-2.” As of the date of this publication, the CDC holds that an individual has come into “close contact” with an infected person if the individual was “within 6 feet of an infected person for at least 15 minutes starting from 2 days before illness onset (or, for asymptomatic patients, 2 days prior to specimen collection) until the time the patient is isolated.”