Reopening for Business: Preliminary Considerations for Employers
President Trump’s Guidelines for Opening Up America Again set out a three-phased approach for reopening states with each phase lasting 14 days. However, the actual reopening process is determined by state and local governments. Employers should develop a plan prior to reopening and ensure that the plan is compliant with each location in which they operate. It is possible that even if the physical location of a business is cleared to reopen, some employees who live in a different locality may remain subject to shelter in place orders.
Specific industries such as health care, meat processing, restaurants and others will likely have additional requirements depending on the location. Be aware that guidance from regulatory bodies, governmental agencies and public health authorities changes rapidly.
A reopening plan should contain, at a minimum, a communication strategy, safety and prevention strategies, testing and screening plans, litigation prevention strategy. As they reopen, employers must be vigilant in ensuring compliance with the ever-changing regulations and restrictions related to COVID-19 in order to avoid legal pitfalls and minimize legal risk. The following is a high level overview of points to consider.
Communication is key. Many employees are understandably anxious about returning to work, so informing them about what to expect upon their return will help alleviate concerns. Include information regarding the process of returning to work (alternate schedules, optional teleworking, etc.), information regarding health and safety precautions, and information regarding available paid or unpaid leave. Employers should consider posting hygiene reminders, available leave, and instructions for employees who feel ill.
Safety and Prevention
It is important to stay up to date on the latest recommendations from the CDC, OSHA, and state and local health authorities. At a minimum, employers should implement (and document implementation of) the precautions recommended by the CDC such as proper cleaning and disinfecting protocols, social distancing (which may include modifications to schedules, physical workspaces, or continued telecommuting), and encouraging respiratory etiquette and frequent hand washing. OSHA has issued guidance based on whether an employee is a low, medium, high, or very high exposure risk and appropriate precautions for each classification. Employers should have an established cleaning protocol consistent with the current CDC guidelines in the event that an employee reports symptoms or receives a positive test result.
Testing and Screening
The EEOC’s position is that employers may administer a test for the virus and may take employees’ temperatures prior to allowing them in the workplace. Ideally, these would be performed by a health care professional. If not, the individual administering the exams must be trained. Care should be taken to ensure that any test is accurate and reliable. All medical information, including testing logs, is confidential and should be kept securely and separately from all other files. It should be understood that infected individuals do not always have a fever or may have taken medicine to reduce fever. Employers may also question employees to confirm that they have not experienced symptoms of the virus. Recently, the CDC expanded recognized symptoms and employers must be vigilant to such CDC clarifications and act in accordance with them.
Employees who have been within six feet of a positive employee for a prolonged period of time should be informed about possible exposure. However, the source of potential exposure (employee) may not be identified. Although these employees will likely have questions, employers should not speculate regarding any employee’s particular situation, but instead advise the employee to contact their physician. Potentially exposed employees should follow the current CDC guidelines for individuals who have been in close contact with infected individuals. If self-quarantine is appropriate, employers should consider teleworking for asymptomatic individuals.
Navigating the various applicable laws during the pandemic can be difficult. In addition to privacy issues and safety concerns, employers must be cognizant of wage and hour laws and potential discrimination issues. Even employers with the best of intentions may unknowingly invite claims under the ADA, ADEA, FMLA, and Title VII when addressing employee concerns and selecting who must return to work and when.
OSHA’s General Duty Clause requires employers to “provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm.” This could include providing personal protective equipment, installing physical barriers, or implementing administrative controls. An employee who speaks out about safety concerns is likely protected by OSHA and the NLRA. Employers should also review relevant labor agreements prior to reopening the workplace.
Typically, workers’ compensation laws do not cover workers who become ill unless the illness was a natural consequence of the job. However, some states have passed legislation ensuring health care workers and first responders are eligible for benefits who are quarantined due to COVID-19 exposure or illness. Other states have passed laws that establish a presumption that workers in certain industries who contract COVID-19 did so as a result of their employment.. Lobbying and legislative efforts are underway to establish a safe harbor for companies so long as the company’s actions do not amount to gross negligence, recklessness, or willful misconduct. As one would expect, lawsuits have already been filed by workers who do not feel sufficiently protected or believe they contracted the virus from the workplace. ADA claims from those suffering from serious illness or with an underlying health condition will also likely surface once the EEOC investigates charges and begins to issue right to sue notices again.