Employers and governments are considering how to reopen sectors of the workforce in light of COVID-19. There are several legal issues raised by employees returning to the physical workplace, including complying with governmental directives and guidance, maintaining a safe work environment, and navigating discrimination, wage, leave and benefits laws. This article discusses best practices for employers as they seek to reopen their doors and allow employees to return to the workplace.
Follow All Applicable Governmental Directives
As an initial matter, employers must stay updated on applicable governmental directives related to the reopening of businesses. The Trump Administration’s recently-unveiled guidelines, Opening Up America Again, provide specific criteria that state governments should consider when deciding whether to relax current stay-at-home orders. The guidelines also inform employers that they should develop appropriate policies in six different areas: (1) social distancing and protective equipment; (2) temperature checks; (3) testing, isolating and contact tracing; (4) sanitation; (5) use and disinfection of common and high-traffic areas; and (6) business travel.
States are taking different approaches to the question of when, and under what circumstances, non-essential businesses should reopen. State governmental directives often have nuances and exceptions and are being updated frequently. State-specific information for certain Midwestern states is available here: Illinois, Indiana, Kentucky, Minnesota, Ohio and Wisconsin.
In addition, some cities, including Chicago, have issued their own directives. Employers should stay current on these directives and comply with any recommended best practices from governmental agencies.
Create a Safe Workplace
Once an employer has been lifted from a state directive and allowed to reopen the workplace, the next priority is to ensure workplace safety. Employers should consult recent guidance issued by federal agencies such as the Occupational Safety and Health Administration (OSHA) and the Centers for Disease Control and Prevention (CDC), as well as state agencies regarding how to maintain a safe workplace. Taft recommends the following best practices:
1. Create a Workplace Re-Entry Multidisciplinary Team
The challenges related to reopening a workplace will be unique to each employer. They will require not only human resources knowledge, but also IT, compliance and safety point-people, and management across each interdisciplinary aspect of the business. As a best practice, employers should create a multi-disciplinary team across these sectors (the Multi-Team) that can address the wide variety of questions that will arise when the physical workplace is reopened, including safety protocols, handling of sick employees, leave and benefits, technology and personnel requirements. The Multi-Team should have a central point of contact so messaging and decisions are consistent.
2. Maintain a Clean Workplace
The CDC regularly updates its guidance regarding best practices for handling COVID-19 cleaning in the workplace. Employers should consult with this guidance regarding how to properly clean and disinfect facilities. The CDC recommends routine cleaning and disinfecting of high-touch workplace surfaces such as keyboards, telephones, handrails and doorknobs. Workplace ventilation should also be examined, and special care should be given to areas of high traffic, such as common areas and bathrooms. An up-to-date list of recommended disinfectants for use against COVID-19 is available here. The Multi-Team should schedule and document routine worksite cleanings.
3. Assess and Eliminate Unnecessary Risks
Workplace safety requires more than disinfecting surfaces. Employers should examine the physical aspects of the workplace that may create heightened risks. This includes confined spaces, lunchrooms, and meeting places. Before any employees come back to the workplace, the Multi-Team should consider physical modifications to make the workplace safer. This may include putting up shields to prevent unnecessary spread of COVID-19, as well as markers to indicate applicable distances for social distancing. Certain communal areas may need to be restricted, and live meeting rooms may need to be repurposed or reconfigured to limit use (such as removing and/or distancing chairs). Workspaces should be spaced in a manner that observes social distancing. Finally, visitors to the office should be restricted to only visits for essential purposes.
4. Provide Proper Equipment
Providing necessary supplies to employees will go a long way to making employees feel safe, and improving company morale. Employers should be mindful of any mandatory face covering requirements, which may require compliance with OSHA’s standard on requirements for personal protective equipment. Employers should also provide hand sanitizers and dispensers, cleaning wipes, and gloves, where they are available. Where such supplies are conspicuously located in the workplace, employees will develop a stronger culture of hygiene and respect for others. Employers should also consider whether training is necessary on certain equipment, such as on the proper manner of disposal.
5. Develop Good Hygiene Policies
The Multi-Team should also consider the adoption of safety-related policies in the workplace. OSHA guidance recommends that employers (1) promote frequent hand washing using proper technique; (2) encourage respiratory etiquette, including covering coughs and sneezes; (3) discourage workers from sharing phones, desks, offices, or other tools and equipment; and (4) encourage routine housekeeping practices, such as cleaning of their workspaces. Companies should communicate good hygiene policies and best practices to employees and post such policies conspicuously.
6. Be Prepared for the Worst
Finally, the Multi-Team should have a ready plan for what to do when an employee in the workplace shows symptoms of COVID-19, tests positive for COVID-19, or has been in close contact with someone who has COVID-19. The Multi-Team should also have a communications plan regarding how and what to message to employees when this scenario happens. It is essential that employers be prepared so that when a COVID-19 situation occurs, everyone is prepared for their respective roles.
Determine Which Employees Should Return
Once the workplace has been prepared and proper safety policies set in place, the next step in returning to normal business operations is to determine which employees should return and when this should occur. While there are no hard and fast rules regarding timing, so long as governmental directives are followed, employers should tread carefully and not rush to reopen all sectors of the physical workplace where this is unnecessary. Taft recommends the following practices:
1. Allow Employees to Continue Working Remotely Where Possible
Even though state governors are allowing certain industries to reopen, this does not mean that all employees should be required to return to the physical workplace. Some employees who have been working remotely might be just as productive as before the COVID-19 pandemic; such employees should continue to work remotely if possible and consistent with the employer’s business operations. Essential sectors of the business that cannot be conducted remotely should be first priority for returning to the workplace. Employers should be mindful of the fact that COVID-19 will inevitably change employee perspectives as to whether physical presence in the workplace is always necessary to do the job. In light of this, work-from-home and telecommuting policies should be revisited.
2. Consider a Phased Approach and Be Flexible
Employers may also wish to consider which employees would like to come back on a voluntary basis, and whether a phased approach is appropriate. Consideration should also be given to alternate schedules, where different employees come to the workplace on alternating days; this allows for better social distancing. The biggest challenge in returning to regular workspace may be for employees who have childcare, logistical or transportation concerns, or employees who are concerned about being at higher risk for severe illness. Employers should navigate these issues carefully with an attorney, as there may be considerations under the Americans with Disabilities Act, the Age Discrimination in Employment Act, OSHA, recent guidance from the CDC, and new leave laws. Of paramount importance is good communication. The safer the employee feels about being in the workplace, the more likely he or she will embrace returning to the workplace.
3. Properly Recall Laid-Off Employees
Employers should also decide whether to recall employees from temporary layoffs. In making this decision, consideration should be given as to the specific function the employee performs, and whether that function is necessary to the employer’s business. The employer should also consider whether the employee can be maintained on payrolls during difficult financial times for a company, as it remains unclear how COVID-19 will impact specific industries in the next few months. Employers must make recall decisions in a non-discriminatory manner, based on documented and objective criteria. Another consideration should be compliance with WARN Act obligations, which may be triggered if temporary layoff status extends beyond six months. Employers should make sure that their recall decisions are not made in a manner that is discriminatory against a protected class under federal or state law.
4. Handle Reprocessing Correctly
In recalling laid off employees, some employers may wish to reprocess paperwork, conduct new background checks and require drug tests. However, background checks should be accompanied by necessary disclosures and consent under the Fair Credit Reporting Act, and employers should not rely upon previous consents given before the employee was furloughed.
5. Workplace Screening
Employers also should take steps to determine which employees are safe to be in the workplace in light of potential illness or exposure. The Multi-Team should consider developing a workplace screening policy that complies with the EEOC Guidelines for complying with the Americans Disabilities Act. Employers are allowed to ask employees who are feeling ill if they have any of the symptoms of COVID-19. These symptoms include fever, chills, cough, shortness of breath and sore throat. Employers may also ask an employee if he or she is caring for someone who has been diagnosed with or exposed to COVID-19. Employers may also test their employees for COVID-19 and take employees’ temperature to identify illness before they enter the workplace. An employer can send an employee home if the employee has COVID-19 or any symptoms associated with it. Employees should also be reminded to stay at home when they are feeling sick. The EEOC Guidelines describe conduct and employee inquiries that are impermissible, even during the COVID-19 pandemic, and the EEOC also reminds employers that any health-related information provided by the employee should be kept strictly confidential. Finally, there may be wage and hour concerns for employees who spend time complying with company screening policies.
Conducting Business in the Workplace
Companies should also be mindful of the fact that even though employees may return to the workplace, day-to-day business activities likely will not be the same as before the COVID-19 pandemic. It is important that businesses embrace these inevitable changes and communicate them to the workforce. Taft recommends the following best practices:
1. Communicate Changed Job Expectations and Schedules
At any given time, some number of employees may be on leave, temporarily laid off or working remotely. These changes to the workforce may impact the job duties of other employees. Employers should communicate regularly with employees regarding any changed schedules, job expectations or performance standards. Previous performance standards and expectations may need to be revised in light of current realities. Employers should be mindful that changing job duties may result in increased overtime for non-exempt employees. And, exempt employees who have their duties changed may no longer be allowed to maintain their exempt status, depending on the nature of the newly assigned duties.
2. Eliminate Unnecessary In-Person Meetings
Due to COVID-19, companies have adapted to using telecommunications and video conferencing as a substitute for live in-person meetings. This practice should continue even when employees have returned to the workplace.
3. Revisit Work Travel Expectations
In light of COVID-19, employers should revisit the need for employee travel to specific locations or customers as part of the job. Such travel may increase risks for all parties involved: the company, its employee and customer. Only necessary travel should occur, particularly to so-called “hot spots” where the risk of exposure may be heightened. Employers should be mindful of which employees are being required to travel, as discrimination issues can arise.
4. Be Mindful of Leave Obligations
Certain employees may need to take paid or unpaid leave under federal law or the specific policies of the company. Companies should make sure that they comply with leave laws, and refrain from taking any measures that can be interpreted as retaliation when employees request leave or return from leave. Also, where employers previously have interpreted the Families First Coronavirus Response Act’s emergency paid sick leave and emergency family medical leave provisions as inapplicable to them (due to employee numerical thresholds or exemptions), such companies should be aware that changed circumstances in the future may cause the company to be covered and thus require the employer to provide these federal benefits to employees.
5. Require the Return of Company Equipment
Employees who previously were working from home may still be in the possession of company equipment, such as computer devices. These devices likely contain confidential information belonging to the company. Employers should keep track of their property that is being used remotely and require the return of such property when employees are reintegrated back to the physical workplace. Failure to keep apprised of company devices could result in a company (1) losing its ability in the future to claim that this information is a trade secret; or (2) becoming vulnerable to data breaches and the violation of federal and state data privacy laws.
6. Revisit Insurance Policies
Now is the time for companies to revisit their insurance policies and understand what type of coverage they have for their business. This includes analysis of current commercial general liability, employer liability and cyber policies and the need for additional coverage.
Assess the Situation on a Daily Basis
Employers will need to stay current on updates to guidance from federal, state and local governmental agencies as new COVID-19-related laws and recommendations are being issued daily. Employers should also gauge company morale as employees return to work and take seriously any employee complaints regarding unsafe workplace practices or other matters. Supervisors should take special care to not retaliate against employees who raise these concerns. Finally, employers should be mindful of company expectations for employees, and ensure that those working from home are not deprived of stature or opportunities for promotion merely because they are not physically present in the workplace. Taking these steps will ensure not only a productive workplace, but also one that minimizes the risk of COVID-19 and preserves company culture.
Please visit our COVID-19 Toolkit for all of Taft’s updates on the coronavirus.