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In Part I of our “New Workplace” series we explored what employers need to do as they transition back to the workplace. With most states beginning the process of reopening, and the expiration of the New York PAUSE order on May 15, this article will examine employers’ responsibilities once they reopen, and what they need to do moving forward.
Reassure your Employees
These are uncertain times, there is no way around that. Many employees may feel anxious about returning to work. Employees’ health and safety are a top priority must be a top priority, and it is the employer’s responsibility to take steps so that their employees feel safe in the workplace.
In order to do this, employers need to regularly review the latest CDC, OSHA, and local government COVID-19 guidance. Follow this guidance to guarantee that your workplace is as safe as possible. Doing so will help to limit the spread of the virus.
New Workplace Protocols
Personal Protective Equipment
CDC guidance recommends that individuals wear face coverings to protect others. To keep the workplace as safe as possible, we advise employers to require face masks or cloth face coverings. Employers may want to consider other personal protective equipment (“PPE”) such as latex gloves to employees depending on the work environment. OSHA requires employers to provide any mandated PPE to employees. If an employee with a disability needs a reasonable accommodation under the ADA or state/local discrimination laws in relation to wearing PPE (e.g., non-latex gloves), you must provide these as well, absent the accommodation causing the organization an undue hardship.
If you have customers or visitors in the workplace, you may want to require them to wear appropriate PPE as well. Employers are not required to provide customers or visitors with PPE.
Employers will also need to determine whether they will conduct health screenings, such as taking employees’ temperatures upon arrival to the workplace. Employers must keep in mind that not all individuals with COVID-19 run a fever. Therefore, temperature screening may not be an effective method to control the spread of the virus. If an employer decides to conduct any health screenings, it needs to apply the practices uniformly to avoid any potential discrimination claims. Additionally, employers must keep all records gathered from screening strictly confidential in order to comply with the Americans with Disabilities Act (“ADA”).
Social Distancing Plan
We also recommend that employers review their workplace layout to ensure employees can maintain adequate social distancing throughout the day. This includes considering whether signage, floor markings, or other precautions need to be added to the workplace. If possible, an employer can also open entrances and exits so that no one is touching doorknobs or handles. Rules can be established as to the number of passengers in building elevators at any one time.
Once you have created and written your new social distancing plan, distribute it to employees to ensure they have received and understand the strategy. Encourage follow-up questions and make sure that employees feel comfortable with the plan. Employers need to reevaluate the plan on a regular basis to maintain consistency with any updates to government guidance.
Employers may also want to consider whether employees can return to work on staggered schedules to ensure social distancing and limit the number of people using mass transit at a given time. If you implement a staggered schedule, you need to be aware that this could raise wage and hour issues and affect an employee’s unemployment benefits.
If you bring back employees on a partial or staggered schedule, be sure that you do not make any promises, guarantees or representations to employees.
Plan for Potential Issues
Once the workplace reopens, employers need to have protocols in place to handle an employee who tests positive for COVID-19. If an employee arrives to work with symptoms of COVID-19, such as a fever, cough, or shortness of breath, or becomes sick during the day, that employee should immediately be separated from other employees and sent home. Encourage employees who feel sick to stay home and follow the appropriate call-in procedures to report their illness.
If an employee is sick with COVID-19 symptoms, urge them to seek medical attention and get tested. If the employee is confirmed to have COVID-19, employers should inform other employees of their possible exposure to COVID-19 in the workplace. However, employers must maintain strict confidentiality of the sick employee’s identity to avoid violating the ADA.
As soon as an employer receives confirmation of an employee’s positive test, we recommend that the employer ask the infected employee what colleagues they have had “close contact” with over the previous 14 days. The CDC defines a close contact as any person that had been within six feet of the infected employee for a prolonged period of time.
Any employee who had close contact with the sick employee needs to self-quarantine for 14 days to help prevent the spread of the virus. Employers need to consider whether they will allow these individuals to use paid time off. The quarantining employees may also be eligible for paid sick leave under the Families First Coronavirus Response Act if they exhibit symptoms and are seeking medical attention, or they are advised to self-quarantine by a doctor.
We recommend that employers establish a return-to-work protocol for employees that have tested positive for COVID-19, such as a doctor’s note clearing them for return.
Employers need to be prepared for employees who express fear of exposure to the coronavirus. These employees may refuse to return to work or demand to work remotely. These anxieties are understandable given the uncertainty regarding the virus and its effects. Employers must decide how they will handle these employees.
In order to make employees feel more comfortable returning, employers can reassure employees that they are making every effort to keep the workplace safe and taking all the necessary precautions to protect employees. In addition, employers should inform employees that governmental guidelines are being closely followed. If an employee is in a vulnerable population or has a comorbidity and expresses anxiety about return to work, there may be discrimination issues that need to be analyzed before making a decision.
Employees also need to be prepared to address safety concerns from groups of employees. Keep in mind that employees’ concerted activity is protected under the National Labor Relations Act. Do not retaliate against employees who express safety concerns.
Prepare for a Second Wave
Many health experts believe a second wave of the coronavirus is likely in the fall. With that in mind, employers need to create a plan that will be used if there is a second wave of infections. This includes the ability to roll back into a remote work setup and how to handle another prolonged workplace closure. This plan can also be used for future pandemics or other emergencies.
The pre-pandemic workplace that we were accustomed to may never return. As reopening of the country continues, employers need to reimagine what the workplace will look like going forward. These considerations contain several complicated issues which require a measured decision-making process. These decisions are also very fact-specific for each employer. Please reach out to us so we can assist you in the process and help you avoid any potential legal pitfalls.