By Vanessa Lystad and KrisAnn Norby-Jahner

Employers everywhere are still grappling with the dizzying amount of information on what is recommended or required when it comes to COVID-19 in the workplace.  Here are some updates for North Dakota employers to help them navigate these issues:


Currently, in North Dakota, there is no statewide mandate, requiring residents to wear masks to combat COVID-19.  However, on August 10, 2020, Governor Doug Burgum announced a new social media campaign to encourage North Dakota residents to wear masks.  This campaign, called #MaskUpND, comes on the heels of a record number of active COVID-19 cases.  The cities of Fargo and Bismarck have announced similar encouragements, but there are no local mandates to wear masks at this time.

While Governor Burgum has not gone as far to mandate the wearing of masks, the Governor’s ND Smart Restart Plan, issued in conjunction with the North Dakota Department of Health (DoH), generally recommends that employers “[i]ncrease the availability of face masks and personal protective equipment to employees” and “[a]lways instruct employees to wear a face mask/cloth face cover while in the workplace.”  This general guidance within the ND Smart Restart Plan is not a legal requirement at this time, but nonetheless shows best practices for employers to follow, unless employers in certain industries would be subject to more specific face covering requirements.

Updated quarantine guidance

On July 30, 2020, the DoH updated its guidance for employers on what to do if one or more employees test positive or are contacts to someone with COVID-19.  This guidance provides that businesses should exclude employees who:

  • Have a fever (100° or feel feverish) OR have new or worsening symptoms of cough, sore throat, muscle/body aches, severe headache with fever, shortness of breath, vomiting, diarrhea, or loss of taste/smell;
  • Have a positive test result for COVID-19; or
  • Have been potentially exposed to coworkers or others in the office (i.e. came within 6 feet of a positive case for at least 15 cumulative minutes).

If an employee is confirmed to have COVID-19, the DoH suggests the employee be excluded from the workplace until at least 10 days have passed since onset of symptoms (or 10 days from positive test if asymptomatic) AND the employee is fever-free for 24 hours without medication AND the employee shows improvement of symptoms.  The DoH no longer suggests bringing back employees, who simply test negative during the quarantine period, unless otherwise advised by a healthcare provider.

Potentially exposed workers should stay at home for 14 days from the last exposure to a confirmed case.  If symptoms develop in that time, the employee should be tested.  If positive, the guidance above would apply.  If negative, the DoH suggests the 14-day quarantine period should continue.

ND K-12 Schools Smart Restart

Many employees are anxiously anticipating the start of the 2020-2021 school year, which may have a significant effect on the workplace. On July 14, 2020, Governor Burgum and State Superintendent Kirsten Baesler released the K-12 Smart Restart guidelines to help North Dakota school districts plan for reopening this fall. The plan gives districts the opportunity to choose whether to teach students in-person, virtually, or with a hybrid of both. School districts across the state have developed their own health and safety plans, with some schools returning to face-to-face learning five days a week; some implementing a hybrid approach, splitting students into groups and engaging in face-to-face learning two or three days a week and distance learning the other days; and all giving families the option to distance learn at home, many under nine-week minimum enrollment requirements.

Like the end of the 2019-2020 school year when North Dakota schools were ordered to close and all had to transition to distance learning, employers may once again feel effects in the workplace.  Employees in a district engaging in a hybrid model, or choosing the distance learning option for their children, may be requesting telework options or time off.  Employers will need to review and develop standard policies and procedures to address these situations.

Should the Governor once again mandate school closures, employers will need to review the Families First Coronavirus Response Act (FFCRA) eligibility requirements for those employees who may qualify for paid leave benefits.  Employees who apply for these benefits based on a school closing must provide the employer with a statement indicating they cannot work or telework due to the need to care for their child and must list the name and age of the child/ren to be cared for, the name of the school that has closed, and a representation that no other person will be providing care for the child during the period for which they are receiving paid leave. If the employee is providing care to a child older than 14, s/he must also provide a statement that special circumstances exist requiring the employee to provide care. If an employee qualifies for these benefits, the employer must also review any previous FMLA or FFCRA leave the employee has already taken. The total available leave for this qualifying reason and any other FMLA-qualifying reason is 12 weeks, and these paid leave benefits are currently available through December 31, 2020.

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