As more state and local governments are loosening stay-at-home orders, and more businesses are seeking to return employees to work, myriad questions are arising about best business practices and legal compliance in conjunction with the reopening of the economy. In an attempt to help our clients, we have put together the following checklist of questions and issues to consider. Clients should keep in mind, however, that it is extremely difficult to anticipate every issue that may arise during the course of a nationwide reopening of business, that answers to their specific questions will likely vary widely according to state or local jurisdictions, and that they should always feel free to call the Kullman Firm attorney(s) with whom they work to seek more specific guidance.
When can employees return to work?
- Check current state guidance.
- Is your business essential? How did your state/local government define essential?
- Is your business a place of social gathering (restaurant, bar, etc)?
- Is your business a personal service provider (i.e. gyms, barber shop, nail salon)?
- Check any local guidance. Some cities are providing different and/or additional restrictions than those imposed at the state level.
What are the different phases for return to work and what do they mean?
The President announced the “Opening Up America Again” plan on April 16 which contained non-binding guidance to state and local governments for phasing in return-to-work and restoring non-essential business operations. This plan is non-binding but has been implemented in several states: Note, however, that some states and localities have announced more aggressive reopening phases than the President’s.
Schools: Remain closed, including youth activities, day camps, etc.
Healthcare: Elective surgeries can resume.
Hospitality: Sit-down dining establishments can operate under strict physical distancing protocols. Bars should remain closed.
Other: Places of worship can re-open with strict physical distancing protocols. Gyms can also re-open following strict physical distancing and strict sanitation protocols.
- Encourage remote work where possible.
- Consider return to work, in phases.
- Close common areas where personnel may gather or enforce strict social distancing protocols.
- Consider reasonable accommodations for members of high-risk categories, when asked to do so.
- Minimize non-essential business travel and adhere to CDC guidelines regarding isolation following travel.
Schools: Schools and organized youth activities (daycare, camps, etc.) can reopen.
Healthcare: Elective surgeries can continue.
Hospitality: Sit-down dining establishments can operate under moderate physical distancing protocols. This also includes other large venues such as movie theaters and sporting venues. Bars can reopen with diminished standing-room occupancy.
Other: Places of worship can remain open with moderate physical distancing protocols. Gyms must maintain strict physical distancing and sanitation protocols.
- Continue to encourage remote work where possible.
- Continue to close common areas where personnel may gather or enforce moderate social distancing protocols.
- Non-essential business travel can resume.
- Consider reasonable accommodations for members of high risk categories, when asked to do so.
Schools: Schools and organized youth activities can remain open.
Healthcare: Hospitals and senior living facilities can allow visitation.
Hospitality: Sit-down dining establishments can operate under limited physical distancing protocols. This also includes other large venues such as movie theaters and sporting venues. Bars can reopen with increased standing-room occupancy.
Other: Places of worship can remain open during Phase Three of the plan with limited physical distancing protocols. Gyms can reopen provided they adhere to standard sanitation protocols.
- Review and monitor public health guidance.
- Continue to maintain cleaning protocols.
- Review and update employment policies as needed to reflect changes in the workplace.
- Maintain effective communication regarding health protocols and when they may be lifted.
- Continue to monitor and evaluate requests for accommodation.
Is your place of employment physically prepared for a return to work?
- Check your current state/local guidance.
- Does it contain any requirements about capacity in buildings?
- Does it contain any requirements about social distancing within a building?
- Does it contain any requirements about face masks for employees and/or customers, and does it place the burden on the employer to monitor customer compliance?
(e.g. Louisiana’s current order states that all employees who have direct contact with the public are required to wear masks).
- Check your state licensing board/professional association to determine whether any new regulations have been issued that impact workspace or business practices.
- Are physical barriers required? Is it necessary to reconfigure office equipment/furniture to promote social distancing (i.e a distance of six feet between workspaces)?
- Restrict the use of shared items and spaces.
- Close common areas where employees gather or, alternatively, enforce strict social distancing in these areas.
- Make sure the necessary supplies are on hand: soap, disinfectant, hand sanitizer, face masks, gloves.
- Prepare cleaning protocols appropriate for your specific worksite.
- Review OSHA’s Guidance on Preparing Workplaces for COVID-19: To help employers determine the appropriate precautions, OSHA has divided job tasks into four risk exposure levels: very high, high, medium, and lower risk.
- Very High: those jobs with high potential for exposure to known or suspected sources of COVID-19 cases during specific medical, postmortem, or lab procedures (e.g. healthcare workers, lab personnel, morgue workers)
- High: those jobs with high potential for exposure to known or suspected sources of COVID-19 (e.g. healthcare delivery and support staff, medical transport workers, mortuary workers
- Medium: those jobs that require frequent and/or close contact (i.e. within 6 feet of) people who may be infected with COVID-19, but who are not known or suspected COVID-19 patients. These workers may have contact with the general public (e.g. schools, high-population-density work environments, high retail)
- Lower: those jobs that do not require contact with people known to be, or suspected to be infected with COVID-19 nor require close contact with the general public.
- Review and adhere to CDC guidelines regarding cleaning and disinfecting the workplace in advance of employee return and maintenance of workplace cleanliness after return.
- Remember if an employer uses cleaners other than household cleaners with more frequency than an employee would use at home, an employer may have to comply with OSHA’s Hazard Communication standard.
- Check governing regulatory agency guidelines, i.e. Food & Drug Administration, Department of Health and Hospitals; Department of Energy; Department of Education.
Who Should Return To Work?
- Check state/local orders to determine whether there are any restrictions on business operations and personnel. For example, are all businesses allowed to resume operation at regular capacity or is it a phased in approach and only essential personnel are permitted to report to the worksite for a specified duration.
- Determine staffing needs in light of operations (and any Paycheck Protection Program rehire obligations).
- Consider whether some positions can be performed remotely on a long-term remote basis such that it provides some financial cost-saving in terms of lease space, utilities, etc.
- Employees who are symptomatic for COVID-19 should not return to work until cleared.
- Consider a return to work in staggered shifts.
How Should Employees Report Back To Work
- Implement daily employee health checks, which in some locations are required for certain businesses by state or local authorities. The EEOC and CDC have both issued guidance indicating that employers may screen employees for symptoms of COVID-19. In implementing an employee screening program, consider these points:
- Provide advance notice of the screening criteria and any related consequences (e.g. employees with a temperature of 100.4 degrees or higher will be sent home.)
- Employers may choose to administer COVID-19 tests to employees before they enter the worksite. Employers must use reliable tests per CDC and USFDA.
- Employers may measure an employee’s body temperature prior to entering the worksite. (In California, employers must comply with the California Consumer Privacy Act which requires written notice prior to conducting employee screening.)
- If an employer chooses to measure body temperatures, the employer should maintain a confidential log of the recordings.
- Employees should maintain proper social distancing while waiting to be screened (i.e they should remain six feet apart). This may cause a delay in the beginning of each shift. For non-exempt workers, the waiting time is possibly considered as compensable time under the FLSA or state law and may need to be paid.
- Employers may ask employees if they are experiencing COVID-19 symptoms which include fever, chills, cough, shortness of breath, or sore throat.
- If an employer chooses to screen employees, it should also screen customers, clients, third-parties entering the site.
- The information must be maintained as confidential medical information and employers should take all precautions to conduct the screening in as confidential a manner as possible.
- The Company should consider designating a person/persons as the official Company representative for COVID-19 screening so that employees have a contact person to self-report throughout the day or off-hours.
- Exempt employees should be returned to work on the first day of the employer’s designated workweek. Exempt employees who perform any work during a workweek are entitled to their full salary for the week under the FLSA.
- Employers should require exempt employees who were furloughed or temporarily laid off to verify in writing that they did not work during that time. If they did perform work during that time, they must be paid.
- Continue to monitor the workforce for symptoms and do not allow employees to return to the worksite if they are symptomatic for COVID-19.
- Require that employees self-monitor for symptoms at home and/or for exposure to affected individuals while away from the worksite and require that they report symptoms/exposure to a designated company official before reporting to work. This can include written affirmations by employees that they are symptom free prior to beginning their shift.
- Develop a system for contact tracing for those employees who are diagnosed with COVID-19. Ask affected employees to identify all individuals who worked in close proximity (within six feet) for more than fifteen minutes during the 48-hour window before the onset of symptoms. The CDC’s recommendations for handling potentially exposed workers depends on whether they are “critical infrastructure workers.” If so, the CDC recommends that for asymptomatic employees, (1) the employer pre-screen such employees by assessing their symptoms and taking temperatures before they enter the facility; (2) the employee “should self-monitor under the supervision of the employer’s occupational health program”; (3) the employee should wear a facemask for 14 days following the last exposure; (4) the employee should practice social distancing; and (5) the employer should clean and disinfect all work areas routinely.
In the case of employees who are not critical infrastructure workers, the CDC’s guidance is that if they have been “potentially exposed,” defined as “being within approximately 6 feet of a person with COVID-19 for a prolonged period (presumably longer than 15 minutes),” then even if they are asymptomatic, such employees “should remain at home or at a comparable setting and practice social distancing for 14 days.” Obviously, employees in any industry who are exposed and do become symptomatic should be sent home.
- Some employees may continue to need EPSLA if they qualify and have not yet exhausted the leave.
- Some employees may continue to need EFMLA if they qualify and have not yet exhausted the leave. Although school is coming to an end, children may have been enrolled in summer camps, etc. that are now closed, etc.
- Consider a phased-in return to work. Returning essential personnel first and then phasing in other workers according to necessity.
- Consider a staggered schedule or split shifts allowing employees to alternate shifts/days working from home and working at the worksite.
- Continue to maintain social distancing at work where work duties permit.
How Should We Address Employee Concerns About Returning To Work
Employees may have some apprehension about returning to work after the stay-at-home restrictions are lifted. Employers should evaluate each situation individually with the following principles in mind:
- Under Section 13 of OSHA, an employee can refuse to work only where the employee believes that he or she is in imminent danger. OSHA defines “imminent danger” as “any conditions or practices in any place of employment which are such that a danger exists which can reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act.” In other words, an employee must believe that death or serious physical harm could occur within a short time before OSHA could investigate the problem. You should follow the guidance issued by the CDC and OSHA to ensure that employees are working in a safe work environment and then evaluate employee concerns on a case-by-case basis.
- Section 7 of the National Labor Relations Act protects employees (both union and non-union) who engage in “protected concerted activity for mutual aid or protection.” The NLRB has stated that concerted protected activity can include, for example, “talking with one or more employees about working conditions” and “participating in a concerted refusal to work in unsafe conditions.”
- If an individual discloses that he or she is in one of “high risk categories” identified by the CDC, an employer should consider its obligations under the Americans with Disabilities Act (“ADA”) to engage in an interactive dialogue with the individual to determine whether a reasonable accommodation may be necessary to allow them to perform the essential functions of his/her job. A reasonable accommodation may include remote work or an alternate shift with limited exposure to others.
- If employees refuse to return to work, the employer may have obligations to notify the state unemployment agency of the date an offer to return to work is made and when it was rejected or if the employee failed to respond.
- Check your state/local orders as to whether any kind of PPE is required for your employees. Also check industry specific guidance.
- Under OSHA’s respiratory protection standard a respirator is only required “when such equipment is necessary to protect the health of such employees.” There is no currently recognized health or safety hazard requiring a respirator.
- The CDC recommends the wearing of cloth face coverings in public settings where other social distancing measures are difficult to maintain, especially in areas of significant community-based transmission. An employer may consider requiring cloth face masks where employees cannot maintain a distance of six feet of each other. Some state orders may require face coverings for employees who deal with the public.
- If an employee refuses to wear a face mask because of a medical condition, an employer should undertake the ADA required interactive process to determine whether a reasonable accommodation is required.
- If an employer requires an employee to wear a face mask, OSHA’s PPE standard may apply. The PPE standard applies to “all protective equipment, including personal protective equipment for eyes, face, head … respiratory devices …” The PPE standard requires that an employer, among other things: perform a hazard assessment; consider alternative options for protection; train employees in the use and care of PPE; and prepare a plan regarding the use of PPE in the workplace.
What Legal Risks Could The Company Face Related To Return To Work And COVID-19
- General Duty Clause
- Personal Protective Equipment
- Hazard Communication Standard
- Workers Compensation
- Employees who contract COVID-19 in the course and scope of employment should be covered by workers compensation. Some states have amended their workers’ compensation laws to create a rebuttable presumption that employees who contract COVID-19 contracted it at work.
- Age and Disability Discrimination – While the CDC has identified the elderly and other individuals with certain medical conditions as being “high risk,” an employer may not exclude those individuals from the workplace solely for that reason unless the employee’s condition poses a “direct threat” to the safety of himself or others. A direct threat assessment cannot be based solely on the condition being on the CDC’s list; the determination must be an individualized assessment based on a reasonable medical judgment about this employee’s disability – not the disability in general and only if no accommodation can be made.
- ADA reasonable accommodation – An employer continues to have the duty to reasonably accommodate individuals that have disabilities, which includes accommodations to work schedules and/or PPE, and even allowing high risk individuals to remain away from work.
- Retaliation – Employers should remember that the EFMLA, EPSLA, NLRA, OSHA, and Workers Comp statutes all have provisions which prohibit an employer from retaliating against an employee for exercising his or her rights. This means an employer needs to carefully evaluate whether an employee has engaged in protected activity prior to any planned termination and ensure that the termination is well supported for reasons unrelated to the protected activity.
- FLSA – if an employer reduced the salary of exempt workers as a cost-saving measure, it should consider a return to pre-pandemic levels, but must balance the concern that the DOL could view a temporary reduction in pay for a period of less than a quarter to be a sham and violate the FLSA such that exempt status would be lost, with the concern of employees that if normal work levels and production have resumed regular pay should as well. If in scaled down work environments, exempt employees are now performing non-exempt duties along with their exempt responsibilities, there is a risk they will lose their exempt status based on whether their primary duties still fall within the exemptions.
Because legal developments pertaining to COVID-19 are constantly evolving, we recommend that our clients call the Kullman Firm attorney(s) with whom they work for the most current guidance on these matters.