As state and local stay-at-home restrictions across the country are lifted, employers are adopting a variety of approaches to resume regular business operations. Some employers, for example, remain unconvinced that the various available online platforms and virtual conference rooms are adequate substitutes for the in-person collaboration that occurs in a traditional office setting. Other employers are continuing to allow or encourage employees to work from home, believing that the impact on collaboration is outweighed by the reduced risk of COVID-19 exposure and transmission.
Regardless of the approach adopted, however, the lack of a vaccine to address the COVID-19 pandemic requires employers to consider a number of factors as they attempt to return to a semblance of “normalcy.” In addition, employers must be prepared to address concerns expressed by employees related to the possibility of COVID-19 exposure, particularly with respect to employees who are at higher risk for developing serious COVID-19 complications. The following provides a brief overview of these issues.
State and Local Ordinances
It is critical for all employers, and particularly those who intend to reopen physical workplaces, to understand their obligations under all applicable state and local ordinances. By way of example, many ordinances require employers to provide masks and sanitizer, in addition to limiting the number of people physically present in the office. Obtaining these required supplies, some of which are in great demand, may require significant advance planning.
Employers should also be aware that state and local ordinances may differ or even contradict one another—counties and cities are generally permitted to enact ordinances that are more restrictive than the controlling state ordinance. In those instances, employers should adhere to the most restrictive controlling ordinance.
Additionally, even in areas where a wide variety of businesses have been granted permission to reopen, some ordinances explicitly require, or strongly recommend, that employers continue to permit or encourage employees to work from home if they are able to do so.
DOL, OSHA, CDC and WHO
In addition to state and local ordinances, employers are also subject to regulations promulgated by government agencies such as the United States Department of Labor and the Occupational Safety and Health Administration (“OSHA”). In practical effect, these regulations are generally regarded as binding legal requirements.
Guidance issued by organizations such as the Centers for Disease Control (“CDC”) and the World Health Organization (“WHO”) may also be informative. In some instances, state and local jurisdictions have incorporated this guidance into government orders, giving it the force of law. Even where such guidance is not mandatory, however, following these recommendations may provide favorable optics in future litigation.
Of particular relevance is the CDC’s guidance addressing what an employer should do if an individual in the workplace has tested positive for COVID-19. Notably, while employers may not be required to shut down the workplace in these circumstances, any individuals who have been in close contact with the infected employee should be identified and exited from the workplace with instructions to self-quarantine.
High Risk Considerations
Employers also must consider how to accommodate employees (1) who are particularly vulnerable to COVID-19 complications due to underlying medical conditions, or (2) who are caring for someone with increased vulnerability. The CDC has recommended that employers not open unless they are prepared to protect such high-risk employees. State and local ordinances may also require or recommend that an employer permit high-risk employees to continue working from home where telework is available, or to adopt other mitigating measures for these populations.
For example, many states have enacted ordinances restricting or encouraging adults over 65 to remain at home even after workplaces reopen. The EEOC has taken the position that employees who are at risk of developing COVID complications due to a disability may request telework as a reasonable accommodation under the Americans with Disabilities Act (“ADA”) to reduce their chances of infection during the pandemic. Pregnant employees may also have rights under the ADA or the Family Medical Leave Act (“FMLA”). Moreover, states may have their own disability and/or sick leave laws and/or regulations with additional requirements.
A failure to accommodate these employees may have serious legal ramifications. Employers may, for example, be subject to age and/or disability discrimination claims under federal or state law, especially if remote work is feasible and those employees have proven that they are capable of working remotely (i.e., during the period in which a stay-at-home or shelter-in-place order was in effect). Employers may also face discrimination claims if they force employees who are caring for someone in a high-risk group to return to work. California courts, for example, have recognized claims of “associated disability discrimination.” Additionally, employees who serve as caregivers for their children, spouse, or parents may be entitled to a reasonable accommodation under the FMLA or the FFCRA. For example, an employee who cares for a child who has tested positive for COVID-19 may be entitled to leave to care for that child.
To avoid these potential pitfalls, employers should engage in an interactive process with employees who express concern about returning to the workplace to identify the underlying reason for the employee’s concern and determine whether an accommodation can be made. Employers should also determine whether their current benefits include leave opportunities for employees who are unable to return to work due to COVID-19 considerations (i.e., sick leave, vacation or other paid time off policies) and ensure that employees understand the benefits available to them. Employees may also be eligible for sick leave or expanded FMLA benefits under the Families First Coronavirus Response Act (“FFCRA”) which applies to employers with 500 or fewer employees.[1] Moreover, states such as New York and California have enacted legislation that provides additional paid sick leave to certain workers impacted by COVID-19. Employers must be familiar with all the benefits available to their employees and be prepared to address and process employee requests for leave in the context of those federal, state and local laws.
Best Practices for Returning to the Office
If you do decide that the possible benefits of returning employees to the office outweigh the possible disadvantages:
- Check your state and local ordinances governing returns to work.
- Check your policies. Make sure that they are up to date, drafted clearly, and do not contradict any controlling ordinances.
- Be clear. Have a clear directive of when, why, and how you plan to return employees to the office, and what the expectations will be in regard to social distancing and other such measures.
- Be familiar with benefits available to employees and prepared to process requests.
- Remember your accommodation obligations.
BakerHostetler has put together guidance to assist our clients in reopening the workplace, “Reopening Your Doors: BakerHostetler’s Return-to-Work Toolkit.”
[1] https://www.bakerlaw.com/alerts/the-families-first-coronavirus-response-act-faqs-for-employers
