Returning to Work (While Social Distancing): Top Considerations for US Employers

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White & Case LLPAs states and cities begin to allow, or plan to allow, businesses to reopen (and for essential businesses to operate more broadly) while the COVID-19 pandemic continues, employers must plan ahead to reopen workplaces safely and in compliance with ever-changing laws and regulations. Employers should become familiar with guidance published by, among others, the US Equal Employment Opportunity Commission (EEOC), the Centers for Disease Control and Prevention (CDC) and the Occupational Safety and Health Administration (OSHA), in addition to local and industry-specific guidance, including guidance from state licensing boards and professional organizations.

Make a Plan to Reopen Safely, and Plan to Share It

The Occupational Safety and Health Act requires employers to provide a workplace “free from recognized hazards that . . . are likely to cause death or serious physical harm” to their employees.

  • OSHA, the CDC and state and local governments are continually updating requirements & providing guidance for best practices for employers, some of which is industry-specific. This guidance can require employers to adopt a written preparedness and response plan and may mandate additional safety measures beyond those suggested here.
  • On April 13, OSHA issued an enforcement plan, emphasizing that the most current CDC guidance should be consulted in assessing potential workplace hazards and evaluating the adequacy of an employer’s protective measures for workers. On April 16, OSHA stated that it will evaluate whether an employer made good faith efforts to comply with applicable OSHA standards by thoroughly exploring all options to comply. An employer should be able to demonstrate a good faith attempt to meet the applicable requirements as soon as possible following the re-opening of the workplace. Where the employer cannot demonstrate its good faith efforts to comply, a citation may be issued.
  • OSHA recommends that all businesses implement a plan to address the following exposure risks and implement appropriate mitigation controls:
    • Interaction among the general public, customers, and coworkers
    • Interaction specifically with sick individuals or those at high risk of infection
    • Non-occupational factors at home and in a community setting
    • Individual employee risk factors (e.g., older age; presence of chronic medical conditions, including immunocompromising conditions, pregnancy, and other risk factors that emerge as our knowledge of this disease expands)
  • As a best practice, implement social distancing and increased health and safety procedures, even if not strictly required in every jurisdiction, in order to ensure a safe workplace to which employees feel comfortable returning

Adapt the workplace to implement social distancing

  • Employee scheduling changes. Consider staggered shifts, staggered work weeks, staggered breaks, increasing spacing between employee workspaces, and minimizing the number of employees in the workplace through telework.
  • Enhance support for continued teleworking. Ensure compliance and cybersecurity procedures are up to date. Provide IT training and support to ensure that teleworking is both effective and secure. Provide additional support to managers in using technology to manage teams remotely. Review the recent remote working experience to determine areas of improvement for sustaining business operations on a remote basis.
  • Physical modifications. Utilize or install physical controls to reduce contact such as clear plastic sneeze guards, automatic doors or drive-through customer service windows. Evaluate the floor plan to determine how to create adequate physical distancing buffers between employees and visitors. Consider marking designated traffic flow paths for high volume areas and marking areas where there will be lines with distance markers. Evaluate the air and ventilation systems to lessen the risk that the virus spreads because of how air circulates around the facility.
  • Limiting physical contact & in-person interactions. Consider how to increase the company’s capacity to deliver services remotely or deliver products with minimum contact. Limit the number of passengers allowed in an elevator or in an enclosed elevator bank. Continue to meet virtually. Consider limiting how common areas or enclosed areas may be used. Determine whether visitors to the workplace will be permitted and under what circumstances.
  • Consider changes to travel policies. Implement or update the Company’s travel policies consistent with federal, state, and local restrictions on nonessential travel. Consider whether personal or vacation travel will be monitored and whether quarantine procedures will apply upon return.
  • Train employees & managers on social distancing protocols in advance. If employees are currently working remotely, before the return to the workplace, provide remote training to employees on the company’s social distancing expectations and ensure employees know where to go with complaints. Ensure that managers understand the disciplinary process for employees who violate these policies.
  • Prevent discrimination and harassment. Remind employees that discrimination and retaliation are prohibited and reporting procedures are in place. Review and refresh policies and trainings. Train managers on responding to discriminatory comments regarding COVID-19 and members of certain races, ethnicities or national origins.

Implement safety & cleanliness measures

  • Follow the latest guidance. Consult guidance from OSHA, CDC, state and local departments of health, and reopening orders for guidance on current standards and best practices.
  • Increase sanitation procedures. Clean “high-touch” objects and surfaces more frequently. Eliminate sharing of electronics, desks and workspaces.
  • PPE procedures. Determine whether employees and visitors will be required to wear masks and/or other personal protective equipment (PPE). If required, determine how it will be provided (or if permitted, reimbursed); if optional, determine whether any “dress code” needs to be established.
  • Empower employees to prevent the spread of COVID-19. Provide training on social distancing, spotting symptoms, coughing and sneezing etiquette, and proper use of PPE. Encourage handwashing and provide soap or hand sanitizer with at least 60% alcohol. Distribute and post in a visible place OSHA &CDC materials applicable to the workplace.
  • Consider alternatives to employees using public transportation. Evaluate whether public transit may impact employees’ ability to safely return to work, and whether any alternatives are available.
  • Develop enforcement policy & avenues for reporting. Ensure that managers understand the disciplinary process for employees who violate these policies, other than pursuant to religious or Americans with Disabilities Act (ADA) accommodations, and that employees know how to report safety concerns.
  • Promptly address safety concerns. Ensure that there is a clear process for employees to raise health and safety concerns, and maintain records of the complaint and the company’s response. The National Labor Relations Act (NLRA) requires that employees be allowed to collectively raise safety-related concerns free of retaliation.

Adopt screening protocols for employees & visitors

  • Symptom screening. Consider whether to ask all employees and visitors questions about symptoms identified by the CDC, such as “Are you experiencing any of the following symptoms of COVID-19: cough, fever, difficulty breathing, etc.?” Consider how frequently these questions will be asked or whether employee will be obligated to update if symptoms occur. The EEOC advises that employers should refrain from asking employees whether they have family members who have COVID-19 or who exhibit symptoms of COVID-19. Instead, the EEOC recommends asking whether the employee has had contact with anyone who has been diagnosed with COVID-19 or who has symptoms of the virus. Any medical information obtained during this process must be kept confidential. As an alternative, businesses may prefer to direct that employees and visitors not enter the workplace with symptoms identified by the CDC as symptoms of COVID-19. Consider adopting leave policies that encourage employees displaying symptoms of COVID-19 to stay at home.
  • Temperature checks. Consider whether to perform temperature checks for all employees and visitors before they enter the workplace. Under current EEOC guidance, employers may require employees to submit to temperature testing prior to entering the workplace; however, evolving CDC and EEOC guidance may impact whether this continues to be permissible, as not every person with COVID-19 has a fever. If recorded, temperature check results must be maintained in the same manner as other confidential medical records, as required by the ADA. In order to ensure confidentiality, as a best practice, consider retaining a third party vendor or health care professional to perform these checks. Consider the logistics of how temperature checks will be performed in a socially distant fashion; as noted above, some employers may prefer to ask employees and visitors not to come to the workplace with a fever or other symptoms. For hourly employees, state or federal law may require that employers pay employees for their waiting time to be screened.
  • COVID-19 testing. Evaluate whether company-paid COVID-19 testing is advisable and under what circumstances. The EEOC currently permits companies to administer COVID-19 testing to employees before they enter the workplace “because an individual with the virus will pose a direct threat to the health of others.” Consistent with the ADA standard, employers should ensure that the tests are accurate and reliable based on guidance from the US Food and Drug Administration (FDA) about what may or may not be considered safe and accurate testing, as well as guidance from the CDC or other public health authorities. Consider logistics, including what type of test, who will conduct the test, who will be tested (only individuals with symptoms?), how often tests will be performed, and how results will be maintained, and how test results will be maintained in accordance with privacy and confidentiality rules.
  • Antibody testing. The EEOC does not currently permit employers to require antibody testing of employees, which could show whether or not an employee has had COVID-19 in the past. Such tests have not yet been proven to indicate immunity for any period of time; however, it is possible that once improved testing is available the EEOC may permit such testing consistent with guidance from the CDC.

Plan to deal with potential new COVID-19 infections consistent with EEOC guidance

  • Plan to address workplace exposure. Establish a procedure that details the company’s response if an employee or a member of an employee’s household feels sick, including to whom the employee should report symptoms or a positive test, ensuring confidentiality of employee health information, how potentially impacted employees will be notified (while maintaining confidentiality), what self-quarantine procedures will be followed, procedures for closure and disinfection of the area consistent with CDC guidance, and policies regarding when affected employees will be able to return to work under CDC and state and local guidance. Employers should keep in mind that the employee’s name cannot be disclosed other than as may be required to local health authorities.
  • Record and report workplace exposure. Evaluate the company’s reporting obligations for employee infection, hospitalization, and death under Department of Labor, OSHA, and state workers’ compensation laws.

Develop a communication plan around plans to reopen

Communicate with employees about the planned return

  • Set out the timeline; explain the safety plan and identify steps taken to date, and provide trainings to employees and managers on return to work expectations and procedures.
  • Clearly communicate leave, teleworking and flexible working policies and how to seek accommodation; consider adopting new temporary policies with additional flexibility during the phased re-entry period.
  • Provide updates to the safety plan as conditions change. Request feedback about the return-to-work process and incorporate it as the plan evolves.
  • Remind employees of employee assistance programs and other benefits. Communicate that the company’s compliance policies and procedures are still in place and ensure that employees are aware of compliance resources.
  • If unionized, ensure any workplace changes are consistent with the CBA and/or discussed with the union.
  • The public health and economic situation is frequently changing; answer employee questions with the current approach and continually update employees as to changes in the safety plan and changes in company strategy & outlook.

Communicate with customers and clients about new social distancing and safety measures

  • Share how products and services will be delivered in new and safer ways.
  • If masks or symptom screenings will be required for visitors, develop a plan to notify visitors in advance.

Be prepared to share the plan if required

  • Federal, state, local, or industry regulators may require disclosure of the health and safety plan.

Ensure that workplace policies & procedures reflect new conditions

The workplace that employees are returning to is different than the one they left, and the transition back to the traditional workplace may need to be a gradual one.

Ensure that employees’ return to work meets all legal requirements

  • All decisions should be made on a non-discriminatory basis. Ensure that managers do not make employment decisions related to returning to work based on discriminatory factors or gender, racial, age, or other stereotypes, or make decisions that result in a disparate impact on certain employee populations. In addition, some jurisdictions prohibit discrimination based on family responsibilities or caregiver status, and certain employer practices with regard to caregivers may implicate gender-specific issues. Employers should ensure that return-to workplace policies treat caregivers equitably and that well-meaning supervisors do not exclude workers with child care or other family responsibilities from important work opportunities.
  • Furloughed employees. In determining which employees should return from furlough first, identify which employees perform essential business functions. Evaluate whether employees have seniority or recall rights which may impact the return to work. Determine how a return from furlough will be treated under health, welfare, retirement and bonus plans. Will they need to re-enroll, update elections, serve a probationary period, or repay health premiums? Reach out to furloughed employees at least a week in advance of a proposed rehire in order to gauge interest and prepare for re-onboarding.
  • Changes in salary, wages or schedules. Consider whether a notice of wage changes or schedule changes will be required under state or local law, included whether any such changes require a particular period of advance notice.
  • Paycheck Protection. If the company obtained a Paycheck Protection Program loan, restore full employment and salary levels by June 30, 2020 to maintain eligibility for loan forgiveness.

Update or create accommodation policies to address special circumstances

  • Vulnerable employees. Employees who are members of a vulnerable population may need to continue to telework, if possible, while the COVID-19 pandemic continues. Provide reasonable accommodations as required by the ADA for employees whose disabilities may develop or be exacerbated by COVID-19. The CDC has identified underlying medical conditions, such as chronic lung disease or serious heart conditions, that could create a higher risk of a person developing a severe illness from COVID-19. The EEOC advises that an employer cannot bar an employee from the workplace solely because of an underlying medical condition. Instead, that action can be taken only after a series of steps are followed that consider ways to accommodate the employee, including by possibly altering their job responsibilities.
  • Maintain flexibility to accommodate other employees. Older employees, pregnant employees , and employees with childcare or eldercare responsibilities or living with individuals in high-risk populations may have similar needs for accommodation, which, while not required by the ADA, may be provided as a best practice in ensuring the safety of everyone in the workplace and stopping the spread of COVID-19. Furthermore, the EEOC notes that remote work “is an effective infection-control strategy that is also familiar to ADA-covered employers as a reasonable accommodation.”
  • Employees who fear returning to work. Understand that many employees may be apprehensive about returning to the workplace as the pandemic continues, and employers should be prepared to engage with employees to address these concerns and elicit whether an accommodation is required under company policies or otherwise advisable under the circumstances. While “mere fear” is not a disability requiring accommodation under the ADA, it’s important to note that an employee with, for example, an anxiety disorder that could be exacerbated by taking public transportation during the COVID-19 pandemic, may require accommodation. Furthermore, if an employee has a reasonable basis for not believing the workplace to be safe, taking adverse employment actions against the employee could raise retaliation concerns under workplace health and safety and other labor laws.
  • Develop an ADA-compliant procedure for employees to seek accommodation. Prepare a response for requests for continued remote work and other accommodations based on the essential functions of the job, not based on discriminatory factors or the personal preferences of line managers. Employers should not make decisions or adopt blanket rules about who can return to work based on a protected characteristic, such as age or a known or suspected disability or health condition. Employers can, however, encourage workers to self-identify (without requiring detailed information) if they have special circumstances or vulnerabilities that may require accommodation or consideration in the return- to-workplace process. In each case, the approach should be individualized and not based on assumptions about the employee.

Update policies to reflect expanded availability of flexible and remote working, new leave policies, and other changes

  • Employers may either allow or require some employees to continue working remotely due to safety concerns or to reduce the costs of operating an office. Employers should carefully consider their state and local tax nexus and apportionment computations and should continue to monitor state guidance regarding COVID-19 relief. For example, on March 30, 2020, New Jersey’s Division of Taxation issued guidance temporarily suspending its rule that work-from-home employees trigger corporate income tax nexus, specifying that the nexus relief will apply during the periods that employees work from home as a result of closures due to the COVID-19 outbreak and/or the employer’s social distancing policy.
  • Update policies to reflect the full range of leave options available to employees, and ensure that managers are familiar with new leave policies. Employees may be entitled to leave benefits under the Families First Coronavirus Response Act (FFCRA), Family and Medical Leave act (FMLA), state and local paid sick leave laws, and company paid time off policies. Retaliation against employees for using FFCRA leave is prohibited.
  • Update HR and benefit plans, policies and procedures. Evaluate what hiring, onboarding & training processes will need to change in order to ensure social distancing. Evaluate whether benefit plans need to be updated to reflect changes in law. For example, the CARES act permits 401(k) plan amendments to allow more permissive loans and withdrawals.

Plan for the future

  • Plan for the next closure. While it’s not a welcome thought, the workplace may need to close again in the near or long term due to COVID-19 or other health emergencies or due to natural disasters or other adverse events. Update the company’s business continuity plan based on lessons learned from the recent experience of closing on relatively short notice, and plan ahead for future closings.
  • Update succession plans. Identify successors in the event any HR or management team member is sidelined.
  • Vaccines. Consider whether to require (and, if permissible to require) or provide vaccinations once a vaccine is available.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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