As the prospect of bringing employees back to the office becomes a reality for some employers, and draws closer for others, businesses need to ensure that they have a return to work plan that prevents the spread of COVID-19 and satisfies their obligation to provide employees with a safe workplace. In addition to employers' general duty under the Occupational Safety and Health Act (OSH Act), federal, state, and local administrative agencies and health authorities have signed explicit orders or issued comprehensive guidance about how employers must protect employee safety in light of COVID-19.

The OSH Act imposes a general duty on employers to furnish to each employee a place of employment that is "free from recognized hazards that are causing or are likely to cause death or serious physical harm." To this end, the Occupational Safety and Health Administration (OSHA) has announced certain "basic steps that every employer can take to reduce the risk of worker exposure" to COVID-19, including the implementation of infection prevention measures and workplace controls, development of an infectious disease preparedness and response plan, and development of policies and procedures for prompt identification and isolation of sick employees (such as testing and screening protocols and employee questionnaires for self-reporting of COVID-19 symptoms and exposure). Employers that fail to implement these basic steps risk exposure under the OSH Act, which can carry steep penalties. Given the danger posed to individuals by COVID-19, employers should not discount the possibility that employees may report real or suspected violations to OSHA, which may form the basis for whistleblower or retaliation claims from employees who believe that their employment was affected by a report of unsafe work conditions.

In addition to the general duty created by the OSH Act, some states and localities impose specific requirements on employers. On May 7, 2020, California permitted lower risk businesses to move into phase 2 of that state's stay-at-home order, but not before they perform a detailed risk assessment and implement a site-specific protection plan and a screening protocol for employees, among other industry-specific requirements for life sciences and other industries. States also are already enhancing protections for employees who are required to return to the worksite before their employers have taken the necessary steps to protect their safety. Pursuant to an executive order issued on May 6, 2020, California employees who test positive or are diagnosed with COVID-19 within 14 days of performing services at the employer's worksite now have a rebuttable presumption that their infection arose out of and in the course of their employment.

And while the U.S. Senate has been discussing liability protections and safe harbors for companies whose workers become exposed to COVID-19, any such measure is expected to provide narrow immunity only for employers who take the proper steps to safeguard their workers. Having a written policy governing employees' return to work with clear guidance for employees on when they can safely enter the worksite and the protocols they must observe while at work will likely be key for employers to avail themselves of any potential immunity.

In order to help employers assess their preparedness and take the steps necessary to resume operations at their worksite in compliance with all applicable requirements and recommendations, Wilson Sonsini and SixFifty have developed an automated and customizable Return-To-Work Toolkit. The Toolkit includes an automated Employer Assessment, which walks employers through a checklist of steps to consider in order to prepare for employees' return to the worksite, such as:

Do you have a protocol in place for communicating with employees who test positive for COVID-19 or have symptoms associated with COVID-19 as to when they can return to work?

Do you have a protocol in place for identifying and notifying employees who have been in contact with an employee who (a) tests positive for COVID-19 or (b) is presumed positive for COVID-19?

If you are subject to the California Consumer Protection Act (CCPA), do you have a plan in place to provide the required notices and disclosures when you collect employees' personal information?

The Assessment provides information to help guide employers' actions with respect to each issue, and provides links to sources and other tools Wilson Sonsini has created (such as an Employee Survey, screening Questionnaire, Self-Certification, and topical policies) to help employers satisfy their obligations. The Toolkit also includes a comprehensive, customizable Return-to-Work Policy that aligns with the current guidance from the relevant authorities. The Return-to-Work Policy sets forth the employer's expectations for employees when they return to the worksite, including the specific screening procedures the employer has selected to use, provides a detailed explanation as to when sick employees are permitted to return to work, and addresses the return of company equipment and confidential information, among other important issues. It also includes an Acknowledgement form in which employees make key representations and provide any necessary consents. Since the situation with COVID-19 remains fluid, these tools will be updated to reflect changing guidance and new directives.