The New York Times article, The Coronavirus in America: The Year Ahead, is deeply reported – more than 20 sources – and well-reasoned coverage and conclusions from the NYT’s infectious disease reporter, Donald G. McNeil, Jr., who has covered “plagues and pestilence” for more than 30 years. Several passages in this vital piece give us pause:
“Exactly how the pandemic will end depends in part on medical advances still to come. It will also depend on how individual Americans behave in the interim. If we scrupulously protect ourselves and our loved ones, more of us will live. If we underestimate the virus, it will find us.”
As of April 2020, coronavirus is the leading cause of death in the United States this year. At the same time, many of us rightly fear the damage being done to the economy and the financial health of individual businesses and families as the stay-at-home orders continue. What will happen if business and life resume too quickly? We fear many companies that otherwise have the ability, and the opportunity, to continue to operate remotely will go back to business as usual too soon despite many well-thought-out efforts to keep their staff and visitors safe. According to the New York Times article:
“Until a vaccine or another protective measure emerges, there is no scenario, epidemiologists agreed, in which it is safe for that many people to suddenly come out of hiding. If Americans pour back out in force, all will appear quiet for perhaps three weeks. Then the emergency rooms will get busy again.”
…
“The tighter the restrictions, experts say, the fewer the deaths and the longer the periods between lockdowns. Most models assume states will eventually do widespread temperature checks, rapid testing and contact tracing, as is routine in Asia.”
A National Agenda for Opening Up America
The White House Coronavirus Taskforce, on April 16, announced its guidelines for Opening Up America. The decisions as to the timing of when each state will reopen will be left to state governors. However, the taskforce proposed three phases of reopening. Each new stage will be triggered by meeting various standards, called “gating.”
For employers, the guidelines for all phases include directives to develop and implement appropriate policies, by following federal, state, and local regulations and guidance and informed by industry best practices, regarding:
- Social distancing and protective equipment
- Temperature checks
- Sanitation
- Use and disinfection of common and high-traffic areas
- Business travel
The guidelines also recommend that employers monitor their workforce for indicative symptoms and not allow symptomatic people to return to work physically until cleared by a medical provider. Employers also should develop and implement policies and procedures for workforce contact tracing if an employee tests positive for COVID-19 test.
We believe companies that can and do maintain social distancing protocols, long after their states reopen to business, will safeguard their workforce. This will result in fewer exposures, health issues and deaths due to coronavirus.
However, many industries do not have the luxury of continuing to operate with employees working from home. What are they to do? How are they to prepare to reopen? What other things must they consider in addition to the taskforce’s guidelines?
There are many protocols and industry regulations to consider for your business.
Note to Pennsylvania Employers: See Appendix for Governor Wolf’s Plan to Reopen PA Businesses
Start with Planning – How to Return to Work After COVID-19
Like crisis planning and management, returning to work after a pandemic requires planning and coordination by company leadership and may require input from additional experts, including general counsel.
Dr. Tom Frieden, the former CDC director and Resolve to Save Lives president and CEO, released a detailed action plan to contain the COVID-19 pandemic and gradually reopen society.
The World Health Organization (WHO) recommends actions to take before, during and after a pandemic in its publication, Pandemic Influence Preparedness and Response. The WHO also has published Getting Your Workplace Ready for COVID-19.
For example, the global commercial real estate services firm Cushman & Wakefield formed a Recovery Readiness Task Force to develop best practices, products and partnerships to prepare clients for post-COVID-19 recovery and the eventual return to the workplace. The task force has published a Readiness Guide available to readers who opt-in. Additionally, the firm launched a new office design concept on its website, which can be found at www.SixFeetOffice.com, showcasing a new social distancing program developed by the firm and piloted in the Netherlands.
Cushman & Wakefield’s guide includes six readiness essentials for real estate owners and tenants across the globe.
- Prepare the Building: cleaning plans, pre-return inspections, HVAC & Mechanicals checks
- Prepare the Workforce: mitigating anxiety, policies for deciding who returns, employee communications
- Control Access: protocols for safety and health checks, building reception, shipping and receiving, elevators, visitor policies
- Create a Social Distancing Plan: decreasing density, schedule management, office traffic patterns
- Reduce Touch Points and Increase Cleaning: open doors, clean desk policy, food plan, cleaning common areas
- Communicate for Confidence: recognize the fear in returning, communicate transparently, listen and survey regularly
These items, among others, are addressed further in this article.
Order Personal Protective Equipment and Sanitation Supplies
To reopen, companies will need supplies such as personal protective equipment – the “PPE” we have all heard so much about these past few months. This includes face masks and gloves which non-health care businesses probably have not stocked much before. Soap supplies must remain adequate and businesses will need to make hand sanitizer and surface sanitizers available throughout all spaces.
Companies also should consider how they will handle the cleaning of all surfaces such as desks, telephones, keyboards and other computer peripherals, monitors, doorknobs, light switches, and other common-use surfaces.
Also necessary are supply chain management implementation and training for proper protocols and usage.
Address Social Distancing Policies and Workplace Layout including Common Areas
An excellent resource for workplace resources is the Society of Human Resource Management (SHRM), which has made its coronavirus resources widely available during the pandemic. SHRM offers a simple poster for social distance guidelines at work. It covers meetings, travel, gatherings, watercooler and dining area, public transportation, and recreational activities. Their website includes Q&As, HR forms, sample employee policies, and more.
In addition, among ten things for employers to consider before reopening after coronavirus, Julie Savarino reminds companies to “review and reconfigure office cubicles and seating and to consider installing barriers to allow for six to 15 feet of physical distance between employees.”
When evaluating your workplace’s physical space, here is a checklist of areas to consider when developing your return-to-work plan. Download the checklist as a PDF here.
▢ Breakrooms, cafeterias and kitchens
▢ Building reception (requires visitor policies)
▢ Client/customer/patient waiting areas
▢ Childcare facilities
▢ Company vehicles
▢ Conference rooms
▢ Copy room
▢ Drop off and pick up areas
▢ Elevators
▢ Exercise facilities and locker rooms
▢ Kiosks
▢ Libraries
▢ Lobbies
▢ Mailroom
▢ Nursing mothers’ space
▢ Parking
▢ Outdoor patios, picnic tables and gathering areas
▢ Respite, recreation, and game rooms
▢ Restrooms
▢ Security areas and checkpoints
▢ Shared equipment (computers, copiers, printers, mobile devices)
▢ Shipping and receiving areas
▢ Stairwells
▢ Storage, supply, and file rooms
▢ Water and hydration stations
Provide Flexible Work Schedules and Work-From-Home Options
The White House Coronavirus Taskforce guidelines remind all vulnerable individuals to continue to shelter in place. Households with vulnerable people are told that “by returning to work or other environments where distancing is not practical, they could carry the virus home and put their loved ones in danger.” Individuals are encouraged to take precautions to isolate themselves from vulnerable residents.
However, there are many industries where individuals are unable to do their jobs from home, and thus, must return to work.
Employers are encouraged to allow employees to return to work in phases, minimize non-essential travel, adhere to CDC guidelines regarding isolation following essential travel, and consider special accommodations for personnel who are members of a vulnerable population.
One of Furia Rubel’s law firm clients will limit the number of attorneys to one per office quadrant (they have four separate quadrants on two floors) and one professional staff member per quadrant on each day. One receptionist will work each day. This means there will be eight lawyers and eight staff members in the two-floor, eight-quadrant building each day and all others should work from home. If essential workers, such as those who work in the mailroom, are needed, only one person will be permitted in the room each day. The firm has added sanitization measures and will allow anyone who requests to work from home due to “personal necessity” to do so. This is just one approach of many that businesses are taking.
Address Travel and Travel Restrictions
Government and health care experts discourage non-essential travel. Anyone who must travel should be required to adhere to CDC guidelines. Travel guidance includes things to consider before, during and after travel.
If travel remains essential, first, consider your risk tolerance. Companies should educate those employees on best travel practices and how to avoid contracting or spreading coronavirus and other infectious diseases.
Tips for essential travel include:
In addition, the White House Taskforce guidelines advise individuals “to avoid socializing in groups of more than 10 people in circumstances that do not readily allow for appropriate physical distancing (e.g., receptions, trade shows).”
Consider Childcare Obstacles and Options
For many, returning to work is not an option if they don’t have childcare. No one knows yet when schools, daycare facilities, summer camps and the like will reopen. What should companies do if they need workers to return to do their jobs? Employers need to consider whether they should offer childcare to their employees, and if so, how they will keep the children and their families safe from contracting COVID-19.
The International Finance Corporation issued a whitepaper on Childcare in the COVID-19 Era: A Guide for Employers which is “interim guidance for employers in a rapidly changing global situation.” The guide covers:
- Current directives and guidance from the government that impact childcare.
- Whether current workplace policies provide enough support to employees and their families.
- How employers can support employees under these circumstances.
- International resources available to help parents during this crisis.
UNICEF, the International Labor Organization and UN Women have compiled Family-Friendly Policies and Other Good Workplace Practices in the Context of COVID-19. It includes guidance on how to support working parents with childcare options that are safe and appropriate in the context of COVID-19.
Implement Heath Testing Resources and Temperature Checks
Once testing is widely available, it may become commonplace to be screened for COVID-19 before being permitted to return to work. According to the New York Times article cited earlier:
“Soon the government will have to invent a way to certify who is truly immune. A test for IgG antibodies, which are produced once immunity is established, would make sense, said Dr. Daniel R. Lucey, an expert on pandemics at Georgetown University’s law school. Many companies are working on them.”
The White House taskforce guidelines list “vulnerable individuals as the elderly” (with no definition of what “elderly” means) and “individuals with serious underlying health conditions including high blood pressure, chronic lung disease, diabetes, obesity, asthma, and those whose immune system is compromised such as by chemotherapy for cancer and other conditions requiring such therapy.” Does this mean that individuals with compromised immune systems and other underlying conditions are now required to report those conditions to their employers before returning to work?
To protect American workers, the U.S. Equal Employment Opportunity Commission (EEOC) on April 17, 2020, issued new guidance on the potential application of the Americans with Disabilities Act. In general, the EEOC says that businesses probably can continue taking precautions, such as checking an employee’s temperature and asking whether an employee is experiencing any COVID-19 symptoms, before allowing employees to enter the workplace.
Still, these procedures raise questions regarding the privacy of health information. It is worth taking the time to consult the FAQs provided by the EEOC and perhaps seek the counsel of an experienced employment attorney.
Include Behavioral Health Resources
In an April 20, 2020 article, the American Journal of Managed Care (AJMC) addressed How COVID-19 Has Affected Mental Health, Severity of Stress Among Employees. It states, “Nearly 7 in 10 employees indicated in a survey by mental health provider Ginger that the coronavirus disease 2019 (COVID-19) pandemic is the most stressful time of their entire professional career, which has aligned with stark increases in new prescriptions of antidepressant, antianxiety, and anti-insomnia medications.”
Renee Branson, founder and principal of RB Consulting, and Certified Resilience Coach (CReC), spoke with Furia Rubel in a podcast about resilience. She said, “Resilience is the ability to bounce forward from crisis, change or challenge. If we bounce back from something, we’re back to where we began. If we’re bouncing forward from something, we experienced that [situation], and we’ve grown from it. We’ve learned from it. We’ve become stronger from it. And that’s the key.
Worried workers are distracted workers. They are less engaged at work, more fearful, less innovative, and less inclined to dream up the bold, audacious ideas needed to propel businesses forward. Employers should provide mental health resources, including tools and techniques for resilience. Besides there being a compelling business case to do so, if you genuinely care about your people, it is the right thing to do.
This briefing note on addressing mental health and psychosocial aspects of COVID-19 Outbreak summarizes key mental health and psychosocial support considerations regarding the pandemic. It was produced by the Inter-Agency Standing Committee (IASC), an inter-agency forum of UN and non-UN humanitarian partners. The IASC outlines an intervention pyramid for mental health and psychosocial support. It starts with social considerations in basic services and security and strengthening community and family supports and builds up to the need for focused person-to-person, non-specialized supports, and, finally, specialized services. In addition, the briefing note lists 14 globally recommended activities that should be implemented as part of the response to COVID-19.
Also, the American Psychiatric Association and Center for Workplace Mental Health published resources for mental health and well-being for working remotely. As employers bring people back to work, companies will need to make mental health tools and resources available to their employees. For example, in response to the COVID-19 pandemic, Starbucks has transformed its mental health benefits for U.S. employees. Starbucks’ U.S. employees and eligible family members will receive 20 mental health sessions with a therapist or coach each year beginning April 6, 2020.
Update Employment Policies and Insurance Policies
For months, professional service providers have been churning out new guidance and protocols for employers facing the upheaval of the pandemic. Lawyers are crafting new employment policies, insurance companies are updating policy provisions, and bankers and accountants are offering guidance on federal loan applications and tax implications.
Pennsylvania and New Jersey labor, employment and workers’ compensation law firm Willig, Williams & Davidson is publishing updates for workers regarding the Families First Coronavirus Response Act and the Coronavirus Aid, Relief & Economic Security, or CARES, Act.
Midsized business law firm McGlinchey Stafford notes that “employers must be ready to address the delicate balancing act that must be performed between ensuring that workers have a safe (disease-free) workplace and protecting employee rights, particularly confidentiality.”
Am Law 200 law firm Stoel Rives has created a COVID-19 resource hub to “examine the legal implications and business disruptions that COVID-19 is causing across industries.” The resources are categorized by industry, topic, and state, so information is easy to find.
Learn To Be Agile – It is a Long Road Ahead
It is an interesting – and profoundly unsettling experience – to be living through a historical event, particularly one of this duration. Living through a pandemic already is changing the way we behave. Watching, for example, commercials or TV shows produced before the pandemic that show large crowds of people packed close together is enough to make us shudder. Greeting with a handshake may be gone forever.
The changes, driven by the COVID-19 pandemic, to the way we think, act, and do everyday life and business still are developing. In response to this state of constant change, we must be ready to change, too.
We must equip ourselves better to grapple with the VUCA world – volatile, uncertain, complex, and ambiguous. The VUCA concept originated at the U.S. Army War College to describe the volatility, uncertainty, complexity, and ambiguity of the world after the Cold War, and it is highly relevant now.
To thrive on the other side of this massive upheaval to our world, we must be agile. We must embrace change. Leaders who share information with their teams, share decision-making, speed up interactions, and quickly and simply evaluate options and make decisions (eliminating 100-page reports and three-hour-long meetings) will adapt well to the new reality and be prepared to handle whatever the next phase of our social and business evolution will bring.
APPENDIX: PROCESS TO REOPEN PENNSYLVANIA
For companies located in the Commonwealth of Pennsylvania, Furia Rubel’s headquarters, on April 23, 2020, Governor Tom Wolf Announced the Process to Reopen Pennsylvania.
In a press release, Gov. Wolf laid out a three-phased approach said to rely on safety and science. The target start date is May 8, 2020.
“The administration will categorize reopening into three phases: red, yellow, green. Phases will be assigned based on conditions in a county, counties or region. The administration will first study conditions in the north-central and northwest regions with a target of moving from red to yellow on May 8.
Additional monitoring will take place and direction will be provided in the next week. To decide when to move to a new phase, the administration will use Department of Health metrics and a data tool developed by Carnegie Mellon University. The full plan is available at www.governor.pa.gov/process-to-reopen-pennsylvania/.
The red phase, which currently applies to the whole state, has the sole purpose of minimizing the spread of COVID-19 through strict social distancing, non-life sustaining business and school closures, and building safety protocols.
RED
Work and Congregate Setting Restrictions Social Restrictions
– Life Sustaining Businesses Only
– Congregate Care and Prison Restrictions in Place
– Schools (for in-person instruction) and Most Child Care Facilities Closed
– Stay-at-Home Orders in Place
– Large Gatherings Prohibited
– Restaurants and Bars Limited to Carry-Out and Delivery Only
– Only Travel for Life-Sustaining Purposes Encouraged
– Reiterate and reinforce safety guidance for businesses, workers, individuals, facilities, update if necessary
– Monitor public health indicators, adjust orders and restrictions as necessary
As regions or counties move into the yellow phase, some restrictions on work and social interaction will ease while others, such as closures of schools, gyms, and other indoor recreation centers, as well as limitations around large gatherings, remain in place. The purpose of this phase is to begin to power back up the economy while keeping a close eye on the public health data to ensure the spread of disease remains contained to the greatest extent possible.
YELLOW
Work and Congregate Setting Restrictions Social Restrictions
– Telework Must Continue Where Feasible
– Businesses with In-Person Operations Must Follow Business and Building Safety Orders
– Child Care Open with Worker and Building Safety Orders
– Congregate Care and Prison Restrictions in Place
– Schools Remain Closed for In-Person Instruction
– Stay-at-Home Restrictions Lifted in Favor of Aggressive Mitigation
– Large Gatherings Prohibited
– In-Person Retail Allowable, Curbside and Delivery Preferable
– Indoor Recreation, Health and Wellness Facilities (such as gyms, spas), and all Entertainment (such as casinos, theaters) Remain Closed
– Restaurants and Bars Limited to Carry-Out and Delivery Only
– All businesses must follow CDC and DOH guidance for social distancing and cleaning
– Monitor public health indicators, adjust orders and restrictions as necessary
The green phase eases most restrictions by lifting the stay-at-home and business closure orders to allow the economy to strategically reopen while continuing to prioritize public health. While this phase will facilitate a return to a “new normal,” it will be equally important to continue to monitor public health indicators and adjust orders and restrictions as necessary to ensure the spread of disease remains at a minimum.
GREEN
Work and Congregate Setting Restrictions Social Restrictions
– All Businesses Must Follow CDC and PA Department of Health Guidelines
– Aggressive Mitigation Orders Lifted
– All Individuals Must Follow CDC and PA Department of Health Guidelines
– Monitor public health indicators, adjust orders and restrictions as necessary
Just as the administration took a measured, county-by-county approach to the stay-at-home order before expanding statewide, it will do the same to ease restrictions and reopen the state. The governor first announced the standards for reopening last week and they remain the focal point for the comprehensive plans announced today:
– The approach will be data driven and reliant upon quantifiable criteria to drive a targeted, evidence-based, regional approach to reopenings in Pennsylvania.
– There will be guidance and recommendations for employers, individuals, and health care facilities and providers for assured accountability as we reopen.
– Reopening necessitates that adequate personal protective equipment and diagnostic testing are available.
– Reopening requires a monitoring and surveillance program that allows the commonwealth to deploy swift actions for containment or mitigation.
– Protections for vulnerable populations must remain steadfast throughout the reopening process, such as limitations on visitors to congregate care facilities and prisons.
– Limitations on large gatherings unrelated to occupations should remain in place for the duration of the reopening process.
The commonwealth is partnering with Carnegie Mellon University (CMU) to create a data-driven decision support tool that will enable a balance between maximizing the strengthening of the economy while minimizing public health risks. This tool will help officials better understand the current health and economic status, as well as the inherent risks and benefits to easing restrictions by sector and region.
There is no single tool or model that can determine easing of restrictions or reopening, but the commonwealth, through partnerships with Carnegie Mellon University and other institutions of higher education, and the criteria set by the Department of Health, will make informed decisions based on data and science.
To determine when a region is ready to reopen and return to work, the state will evaluate the incidence rate of COVID-19 cases per capita, relying upon existing regional health districts used by the Pennsylvania Department of Health. A regional assessment will measure the COVID-19 cases to determine if the target goals of an average of less than 50 cases per 100,000 individuals over the course of 14 days is met. The administration will work closely with county and local governments to enable the communities to reopen and transition back to work. Throughout this process, the administration will have guidance in place to support best public health practices to avoid these negative impacts. This guidance will reinforce and build on existing business and building safety orders and will adapt to the changing nature of the pandemic, even as we learn from the first communities to reopen.”
Additional Resources
Order of the Secretary of the Pennsylvania Department of Health Directing Public Health Safety Measures for Businesses Permitted to Maintain In-person Operations: www.governor.pa.gov/wp-content/uploads/2020/04/20200415-SOH-worker-safety-order.pdf
Order of the Secretary of the Pennsylvania Department of Health Directing Building Safety Measures: www.governor.pa.gov/wp-content/uploads/2020/04/20200405-SOH-Building-Safety-Measures.pdf
