As government authorities slowly begin the reopening process, employers are now preparing to reopen facilities and return employees to their worksites. Undoubtedly, with the COVID-19 pandemic still ongoing, a return to work certainly will not mean a return to how things used to be and employers will need to implement new processes and procedures to adequately prepare employees and comply with state and local requirements. This brief guide outlines various considerations employers will have to make to gradually and safely bring their workforce back and create a new normal.
Please keep in mind that the COVID-19 crisis is constantly changing and employers’ decisions will be highly dependent on the individual jurisdictions and industries in which they operate. However, as we anticipate further guidance from federal, state, and local governments, the following considerations should provide a good starting point as you prepare to return employees to the workplace.
Step 1: Abide by State and Local Directives
The question of when employers can begin reopening is in large part based upon state and local directives, which will guide when and how businesses may reopen. The current practice employed by most states seems to be a reopening in phases, with various sectors permitted to open before others, and at various capacities and operational levels. Once an employer has determined that they have gotten the “green light” from their state and/or locality, the company may then begin to assess pre-opening considerations. Employers should keep in mind that many states and localities are implementing guidelines on how businesses will reopen, providing recommendations and indeed oftentimes mandates, for how companies must operate.
Step 2: Prepare the Workplace
Undeniably, the number one priority for most companies will be the safety of employees and the community at large. The U.S. Centers for Disease Control and Prevention (CDC) recently released guidance to assist businesses in making decisions regarding reopening during the COVID-19 pandemic, which includes among other things, an evaluation of whether there are adequate measures implemented to minimize the likely spread of disease. These safeguards include ensuring that companies:
- thoroughly disinfect and clean the worksite prior to employees’ return;
- ensure there is a constant supply of alcohol-based hand sanitizer and soap, for example;
- mandate that sick employees and employees who may have been exposed to COVID-19 stay home;
- implement an effective action plan if an employee tests positive for COVID-19 and/or exhibits related symptoms;
- establish routine, daily employee health checks; and
- keep communication channels with employees open.
Step 3: Risk Management
Employers need to emphasize and focus on risk management; that is, what can be done to expose employees to the least amount of risk and what protocols should be adopted to limit employees’ exposure, vulnerability to getting sick, and/or jeopardizing their health.
- Employers may immediately remove employees who become ill, or is visibly unwell, or who exhibit signs of the COVID-19 virus, as outlined by the CDC. While some employers require employees to present a doctor’s note before returning to work, where procuring such a note may not be feasible, due to backlogs, companies should require employees to wait at least 72 hours following a subsiding of symptoms before returning to the workplace.
- Employers may require that employees are screened using a no-touch thermometer prior to entering a worksite location. The Equal Employment Opportunity Commission (EEOC) has released guidance authorizing employers to take employee temperatures as part of an employee health screen. However, employers must provide appropriate personal protective equipment, administer relevant training, and be sure to keep all recorded information confidential and separate and apart from the employee’s personnel file.
- If an employer receives information of the workforce’s possible exposure to an employee who tests positive for COVID-19, appropriate communication and cleaning protocols must be implemented. This would include notifying exposed employees and maybe even closing down the worksite for a period of time to adequately clean and sanitize.
Step 4: Employee Availability and Leave Needs
Depending on forthcoming state and local guidance, an employer may assess which employees to prioritize returning to the workplace in order to not only limit the number of people in the office, but to also accommodate those who may need to stay at home due to child care obligations, for example. The legitimate business reasons for any selection process should be documented to provide evidence of non-discriminatory selection criteria, if later challenged. Employers who have not already done so, should also review and revise their sick leave policies to be updated in accordance with the recently enacted Families First Coronavirus Response Act, which applies to most employers of fewer than 500 employees. Additional policies may also need to be reviewed and revised, including telework arrangements. While companies may require that most employees return to the workplace, it is important that companies review their ADA and FMLA policies to make sure that they are providing leave as required.
Step 5: Workplace Protocols
Once employees return to work, employers should take every measure possible and feasible to comply with CDC, state, and local guidelines and recommendations. Most importantly, employers need to provide a safe work environment for employees. As such, employers should consider enforcing the following protocols:
- Mandate social distancing among employees where possible and limit any in-person meetings or conferences.
- Possibly require use of protective gear, including masks or face coverings, but employers may have to provide the employee with such equipment if the company requires it.
- Promote respiratory etiquette of covering coughs/sneezes and personal hygiene by encouraging workers to frequently wash hands with soap and water for at least 20 seconds and providing ready access to soap and water for handwashing, providing hand sanitizer stations or alcohol-based hand rubs containing at least 60% alcohol.
- Re-assess the need for employee travel and limit any business travel to strictly essential needs.
- Limit access to common workplace areas, including lunch/break rooms, fitness centers, cafeterias, etc. To the extent that commonly shared areas will be used (i.e., restrooms), ensure regular deep cleaning of such spaces.
These are just a few of the many considerations employer will have to make in assessing and arranging for a returning workforce. For additional insight and guidance on the legal requirements, policies, and procedures that employers should take into consideration, please join members of PilieroMazza’s Labor and Employment Group as they co-host an upcoming webinar on this topic on June 2. For further details and to register, please visit this link. Additionally, stay tuned for PilieroMazza’s upcoming webinar series “The Post-Coronavirus Workplace” aimed at covering a range of return-to-work topics for employers, including long-term remote work strategies and specific considerations for government contractors.
If you need assistance navigating the complexities of bringing your workforce back and need additional guidance or help drafting and/or implementing policies and procedures, please contact the author of this blog, Sara Nasseri, or a member of the Firm’s Labor and Employment Group.
PilieroMazza is monitoring the rapidly changing COVID-19 crisis and will provide updates when more guidance is released by the government. We also invite you to visit the Firm’s COVID-19 Client Resource Center to access further resources that will help businesses navigate the effects of the COVID-19 pandemic. If you need immediate assistance, please contact us at firstname.lastname@example.org.