As stay-at-home COVID-19 restrictions are lifted, and nonessential businesses plan for reopening their workplaces, the hard reality is that nothing will be “business as usual.” Employers must balance the return to on-site work with the health and safety of their workers and clients, all while complying with a variety of local, state and federal requirements and guidelines. Employment law compliance remains critical, including with, among others: wage and hour laws, including the Fair Labor Standards Act (FLSA); the Americans With Disabilities Act (ADA) and local equivalents; the Occupational Safety and Health Act (OSHA); the Family and Medical Leave Act (FMLA) and local and municipal paid sick laws; the new federal Families First Coronavirus Relief Act (FFCRA); local COVID-19-related emergency paid sick leave provisions; and workers’ compensation obligations. An employer’s policies, practices and contracts, including any collective bargaining agreements (CBAs), must be considered alongside the essential practicalities of resuming a business, with the goal of returning to normal as soon as possible.
Before returning employees to the workplace, employers should balance the following practical considerations:
Continue to Follow Current Guidelines from Leading Health and Government Authorities.
- Stay informed of and follow current guidelines from the leading health authorities, as applicable to the geographic regions where business operations or employees are located. Guidance on the national level is provided by the U.S. Center for Disease Control (CDC) and the U.S. Occupational Safety and Health Administration (OSHA). Guidance issued by state and local public health agencies should also be consulted.
- Recognize that many public health pronouncements are advisory in nature, but may serve as a good measure for whether reasonable care was taken to protect employees and customers from infection.
For companies with employees in more than one jurisdiction, consider whether to adopt a company-wide approach following the most restrictive applicable guidelines or whether different locations will follow different schedules and procedures for reopening.
Disseminate Current Resources and Information to Workforce.
- Communicate to workers the steps the company is taking to provide a safe and healthy workplace. These communications are vital not only to reassure returning employees, but because a safe workplace cannot be achieved without employee understanding of and compliance with protocols. Clearly communicate employees’ options and obligations when the workplace reopens, such as the use of personal protective equipment (PPE), social distancing protocols, any testing or screening protocols, etc. It may also be helpful to ask employees for feedback regarding ideas that could enhance workplace safety.
- Direct employees to resources that provide current updates in this dynamic situation, such as the CDC website.
- Develop workplace policies and practices related to travel, teleworking, onsite meetings, interactions with customers and vendors, worker safety protocols, work schedules, leave requests, and any other COVID-19-related issues. Keep in mind that OSHA and CDC guidance may change as government mandates shift.
- Appoint a person or team who will be responsible for coordinating all COVID-19-related issues, including reopening the worksite, tracking potential exposures and illness, employee training, updating management, addressing employee concerns, etc.
Determine When and How to Return Workers to Onsite Work.
Reopening does not have to entail an immediate return to pre-pandemic levels of onsite work—and most likely cannot—although that can certainly be the long-term goal. Companies should consider what kind of reopening is best for their business needs, including a phased reopening, continuing to work remotely, or other creative options.
Where a phased reopening is desired, determine which employees will return to the workplace during each phase and develop an action plan for each phase of the reopening (including contingencies for workplace exposure and temporary shutdown).
Consider flexible work schedules for employees to stagger their time in the workplace or avoid the use of public transit at peak hours, part-time schedules for employees who have continued caretaking obligations, such as due to school and childcare facility closures, or extending approval for telework arrangements. Such measures will benefit not only the individual employees who request the arrangements but will also reduce density onsite, making it easier to implement physical distancing protocols and reducing potential exposures.
For telework arrangements past the lifting of stay-at-home orders, check the legal requirements in the applicable jurisdiction regarding business expense reimbursements to ensure proper reimbursement of any necessary teleworking expenses. Also consider whether enhanced network capacity is necessary to facilitate remote work and if additional cybersecurity training should be provided to remote employees.
Decide What Level of Preventative Workplace Behavior is Appropriate
- Planning:
- Identify and evaluate worksite hazards per OSHA guidelines. Performing a risk assessment can help employers (1) identify potential threats, (2) evaluate the likelihood of each threat, (3) address the potential consequences of each threat, and (4) prioritize and address high-risk threats over lower risk threats.
- Review onsite layouts and equipment before returning employees to onsite work. Employers may need to temporarily close or limit access to certain common areas or reconfigure work spaces. Consider installing physical barriers, such as plastic shields, to separate open-plan workspaces, increasing the physical space between workers’ workstations to at least six feet, installing sanitation and disinfectant stations, and placing signage about hygiene protocols. Evaluate how to balance security and safety, if access-controlled doors are controlled by high-touch PIN-entry systems.
- Consider whether to restrict the number of employees and/or visitors onsite at a given time. Evaluate the suitability of staggering workdays, shifts, or break times to decrease the number of employees reporting to work or congregating at the same time. Companies may wish to restrict worksite access to employees only, temporarily excluding visitors, clients, vendors, contractors, or to require testing and prescreening of visitors. (See below.)
- Ensure an adequate inventory and continued supply of appropriate PPE for the kind of work employees perform, sanitizer, and other necessary supplies.
- If other tenants share office space or occupy the same building, coordinate entry protocols with those tenants and the building manager.
- Testing and Pre-Screening:
- Evaluate whether to pre-screen or test employees (e.g., daily temperature checks and/or symptom checks prior to entering the worksite). The CDC has recommended that certain businesses consider using temperature screens. Although the EEOC guidance also allows employers to administer temperature screens and reliable COVID-19 testing, many uncertainties remain. Counsel should be consulted before any testing or screening program is implemented.
- Follow public health and OSHA guidance regarding requiring employees to stay home if they are exhibiting any symptoms of COVID-19 and when it is safe for an employee who has been infected to return to the workplace. Consider what medical certification will be required before permitting the employee onsite.
- Some employers may want to implement self-reporting protocols requiring employees to contact HR before reporting to work if: (1) they have been in close contact with someone who has been diagnosed with or is exhibiting known symptoms of COVID-19, or (2) the employee has tested positive for COVID-19.
- PPE and Social Distancing:
- Based on what is reasonable and necessary for the particular worksite, determine what PPE (e.g., face masks/coverings, gloves, etc.) may be needed in the workplace and whether any training is necessary regarding its proper use. For example, face coverings or masks may be sufficient for many businesses, but enhanced protection is warranted for worksites with greater exposure potential (e.g., direct contact with the public) and those where social distancing cannot be reasonably maintained at all times. Decide whether employees can use their own face coverings or whether to mandate employer-supplied face coverings. Keep a supply of PPE readily available to distribute to any employee who exhibits COVID-19 symptoms at work, for use prior to their exit from the worksite.
- Physical distancing requirements will vary by workplace. Think about discouraging previously “common” workplace behaviors like handshaking, in-person group meetings or close contact of any kind, including congregating in break rooms during breaks or lunches. When applying workplace social distancing protocols, remember common areas like elevators, stairwells, cafeterias, water or coffee stations, restrooms, etc.
- Employers with workers in communal workspaces should consider alternative work locations and arrangements to ensure proper distancing.
- Hygiene and Cleaning:
- Stay abreast of and post the latest CDC guidance on sanitary practices for the workplace (e.g., Reopening Cleaning Guidance, handwashing, coughing and CDC Factsheet) and consider what materials and protocols to establish in the workplace to reduce the chance of virus transmission. These approaches may differ depending on the workplace environment. Ensure that employees are notified of and trained in these new workplace protocols.
- Review your environmental cleaning practices to ensure frequently touched common areas/surfaces are routinely cleaned and sanitized. If your company is not responsible for cleaning/maintenance, discuss enhanced cleaning protocols with the cleaning/maintenance service or building management. Prohibit workers from using other workers’ phones, desks, offices, or other work tools and equipment, where possible. If shared equipment is required, implement proper cleaning and sanitation measures between uses and provide cleaning materials (e.g., CDC-recommended disinfectant wipes/spray) for employees to use to wipe down commonly used work surfaces and equipment before they use it.
- Evaluate arrangements for employee mealtimes and breaks, including appropriate protocols for on-site food service operations. Determine how to sustain physical distancing and sanitation protocols in common areas and kitchens.
Review Current Travel and Meeting Guidelines (Both Business and Personal).
- Consider whether to institute new travel guidelines with higher travel restrictions than the current CDC travel guidelines and WHO travel advice, such as prohibiting all business travel unless absolutely necessary in the company’s sole discretion and with pre-approval.
- If your company will allow visitors into the workplace, evaluate whether to implement office guidelines for visitors and clients who may have traveled from outside the geographic office location (either within the United States or internationally) and/or screening of visitors. For companies with customers accustomed to entering the premises, consider whether and how to limit exposure between your workforce and customers, including limiting the density of and number of customers who may come onsite.
- Where travel is allowed or required, consider issuing a temporary COVID-19 Travel Policy that clearly outlines travel expectations and restrictions during this pandemic (for both personal and business travel). Employers should stay informed regarding the current pandemic conditions in the travel destinations of their employees and provide any necessary PPE and CDC Guidance to help reduce the risk of transmission during business travel.
- Discuss with counsel the implications of allowing business travel during this time (e.g., potential workers’ compensation claims due to exposure while traveling, self-reporting protocols, quarantine or isolation requirements upon return, etc.).
Establish a Compliance Plan for Continued Leaves of Absence or Remote Work Arrangements.
- Work with counsel to develop a plan for determining whether and when leave must be provided to employees under new laws such as the Families First Coronavirus Response Act (FFCRA) (including Emergency Paid Sick Leave (EPSL) and Emergency Family Medical Leave Expansion Act (EFMLEA)) and new local COVID-19-related paid sick leave ordinances, as well as laws such as the Family Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and state leave laws. Implement compliance measures that may include developing certification and return-to-work forms and distributing and/or displaying required
- Consider that employees and health care providers may be overburdened and unable to provide detailed medical certifications or other documents in a timely manner and whether emails or other short form documents may suffice.
- Consult with counsel before denying any employee request for extended leave or continued telework or part-time work arrangements. Consider whether pre-pandemic standards will apply to such requests, or whether a more flexible approach is feasible or warranted.
Establish Protocols for Dealing with Exposure and/or Sickness in the Workplace.
- Consult current OSHA and CDC Guidance for potentially exposed, exposed or sick workers and establish protocols and implement training to be ready if and when the situation arises. This may include requiring immediate self-reporting to HR or another designated person, monitoring their health and symptoms, and self-quarantine for the recommended quarantine period. (See CDC’s Social Distancing, Quarantine, and Isolation.) If a potentially exposed employee must be onsite, it may include requiring the employee to practice social distancing at all times and wear PPE.
- Encourage employees to self-monitor for signs and symptoms of COVID-19 and/or to contact their health care provider if they suspect possible exposure. Refer employees to informational resources such as CDC’s “Should You Get Tested” or “Coronavirus Self-Checker” pages.
- If an employee develops symptoms at the workplace, employers should be prepared to deploy a safety protocol action plan, including immediately isolating the employee, providing PPE, assisting the employee with a discreet and immediate exit from the workplace, and cleaning and sanitizing the employee’s work area and any common areas potentially affected according to current CDC/OSHA guidance.
- For confirmed cases, if an individual was exposed to COVID-19 “on the job” as part of his or her work-related duties, it may be an OSHA-recordable illness. (See OSHA's Enforcement Guidance for Recording Cases of COVID-19.) Companies should prepare a plan now for informing employees and visitors of a potential exposure and how to identify and track sick or exposed workers within ADA confidentiality guidelines.
- Consider teleworking options for the recommended quarantine period for employees who are able and willing to continue working. Address any pay issues that may exist if the employee is otherwise ready and willing to work, including paid sick leave that may be required under federal, state or local laws, as discussed above.
- To the extent recommended by the EEOC, CDC and/or OSHA, consider requiring a doctor’s fitness for duty certification (or negative test result) before returning to work. (See EEOC guidelines.) Permit a return to onsite work only when criteria set forth by the CDC to discontinue home isolation are met, in consultation with health care providers and state and local health departments.
Take Reasonable Steps to Avoid Discrimination and Failure to Accommodate Claims.
- Implement and/or reinforce all reasonable measures taken to prevent workplace discrimination or harassment, including misguided perceptions that workers of particular races, cultures, or national origins are more likely to be infected with or spread COVID-19. (See EEOC Guidance/FAQs.)
- To avoid violations of the ADA, do not ask employees whether they have underlying disabilities or health conditions, even if the question is prompted by concern about whether an employee is at heightened risk of severe complications from COVID-19. If an employee volunteers such information, however, consult with counsel about accommodation requirements.
- Stay abreast of EEOC guidelines addressing what screening information may be requested or obtained from employees during this pandemic (e.g., inquiries regarding associated symptoms, taking employee temperatures, etc.). Be aware that as the “direct threat” level decreases, prior EEOC rules prohibiting employer medical exams may be reinstated.
- Remember to continue to engage in the interactive process to evaluate reasonable accommodations for employees who: (1) suffer from COVID-19-related symptoms or illness; (2) may expose co-workers to the virus; (3) may be at higher risk from COVID-19 due to a known medical condition; (4) have medical conditions that make wearing certain PPE or being exposed to certain cleaning agents problematic; (5) may experience an exacerbation of an existing medical condition due to the circumstances related to this pandemic (e.g., mental illness or other physical issues); or (6) have childcare responsibilities due to school and childcare facility closures.
- Review confidentiality procedures to ensure all medical information (including any screening or testing) is being kept confidential in compliance with ADA requirements.
Ensure a Safe Workplace to Minimize Potential Liability.
- Consult with legal counsel to determine whether state-specific guidance has been issued as to whether a COVID-19 infection tied to the workplace may be covered by workers’ compensation claims. Review the terms of your workers’ compensation insurance policy to identify any exclusions or premiums that may apply in pandemic situations, and consider whether any reporting obligations exist based on the scope of work being performed by employees.
- For employers who are open to the public, pay careful attention to state and local reopening orders, and determine scope of protections and requirements that owners must make available to customers and employees, alike. Creative plaintiffs’-side attorneys are crafting novel legal theories alleging employer liability outside the scope of workers’ compensation where nonconformity has occurred.
- For employers maintaining telework for some employees, develop and implement a remote work agreement that details the responsibilities of employees, including to ensure a safe workspace in their homes and deny liability to third parties injured at employees’ homes.
Assess Previous Employment-Related COVID-19 Actions.
- In consultation with counsel to preserve legal privileges, consider reviewing all employment-related actions taken in reaction to COVID-19. Take remedial action as necessary, where actions taken were rushed and are not or are no longer appropriate or in line with subsequently issued regulations. Areas to consider include reductions in force and furloughs, wage and hour issues, and compliance with local orders.
- Document decision-making regarding all COVID-19-related practices and compliance with those practices. In instances where business practices are altered due to CDC, OSHA or other federal, state or local “best practices,” and especially where the recommended “best practices” are not practicable, document in real-time the reasons why certain practices were or were not implemented (such as, for example, difficulty obtaining proper PPE and the efforts undertaken to acquire it).
Develop Written Policies, Train Employees, and Prepare for Future Slowdowns or Stoppages.
- Use recent experience to prepare for the future. Determine what policies, procedures, and internal guidance documents should be put in place to ensure compliance and protective measure, as well as to prepare for a “second-wave” or new epidemic that could result in a second shutdown of the workplace. This might include developing checklists, flow charts, logs and tracking tools to document adherence to sanitation and screening protocols and any other regularly scheduled protective measures (i.e., distribution of protective equipment, placement of barriers, etc.). It may also include the development of incident response protocols and a workplace safety program. (See Cal/OSHA’s step-by-step Guide to Developing Your Workplace Injury and Illness Prevention Program with checklists for self-inspection.)
- Make sure that employees receive copies of all relevant documentation and are provided with instruction on how to comply with protocols, including (1) how to conduct temperature checks and other screening measures; (2) how to use equipment and personal protection; (3) interacting with other employees and members of the public; and (4) escalation and response protocols for non-compliance and other emergency situations. Depending on the nature of an employee’s obligations, consider developing scenario training or tabletop exercises on incident response protocols.
- Regularly review and update documentation to reflect policy changes, new regulatory requirements, and new public health guidance.
Engage in Crisis Management and Communications Planning.
- Assess overall business issues, with coordination by Pillsbury’s Crisis Management Team to coordinate response on various interdisciplinary legal fronts, including employment issues, business contracts and supply chain interruptions, insurance recovery and liability issues, and Q&A and regulatory compliance
- Develop communications and “holding statements” in the event there is a workplace outbreak or high-visibility employees become infected.
For further information and to obtain advice and strategic input on your return to work planning, in addition to the listed authors, feel free to contact any of our Employment attorneys including Jean Kuei, Stacie Yee, Thomas Liu, Marcia Pope and Rebecca Carr Rizzo, who can also coordinate appropriate involvement of colleagues within the Employment Group, Workplace Safety attorneys Tom Van Wyngarden and Stephanie Angkadjaja, and the Pillsbury Crisis Management Team, including Aimee Ghosh.