Last week, we detailed 10 questions employers should ask before bringing employees back to the workplace. This week, we dive deeper into each and help you apply guidelines from state and local orders, as well as various federal agencies, to create a customized return-to-work plan for your business.
Consult Centers for Disease Control and Prevention (CDC) guidance, as well as state and local restrictions in each jurisdiction where you operate, to decide if employees can return to the workplace. The CDC recommends that businesses do not reopen unless they can answer “yes” to each of these questions:
Some state and local jurisdictions allowed all businesses to reopen. Others continue to restrict employees from returning to “nonessential businesses” or permit the return but impose strict capacity limits. You may also want to consider what other businesses like yours in the community are doing and if that impacts your approach.
If your business leases as opposed to owns its facility, you also need to consider restrictions or conditions your landlord may impose and if those restrictions make it feasible for your employees to return to the workplace.
If your employees can return, you will need to decide which employees should come back and how to stage that return. The CDC, along with many state and local orders, recommends employees return to the workplace in phases and continues to encourage employers to permit teleworking where feasible.
You must decide if your business will bring all employees back at the same time or if you will have some employees continue to work remotely for a period of time. This will depend on not only if your employees can perform their essential job functions remotely, but also if you have employees with high-risk conditions, who live with someone with high-risk conditions, or who have child care challenges imposed by school, child care and summer camp restrictions.
Letting some employees work remotely may also help you maintain social distancing requirements at the workplace. To support social distancing, you can also consider staggering employee shifts and start times or alternating days in the workplace.
If returning in phases, you will need to decide which employees to bring back during which phase. Will the return be handled on a voluntary basis, limited to key decision-makers, by seniority, or through a random selection process? The selection criteria should be applied impartially. You will want to have processes in place to analyze potential adverse impacts on individuals in protected classes.
If portions of your workforce have been furloughed, consider how to bring those employees back from furlough. Keep in mind laws that require giving priority to furloughed or part-time employees before adding new hires.
The CDC and Occupational Safety and Health Administration (OSHA) have detailed guidance by employer and industry for physical distancing, hygiene and increased sanitation requirements in response to COVID-19 pandemic. Have you evaluated the workplace for needed modifications to protect employees who may be exposed to outside visitors like delivery and maintenance personnel? Have you put those in place? For example, you can use plastic shields, directional arrows and stand-off lines from counters.
Have you considered steps needed to modify the workplace for social distancing measures, such as evaluating the maximum number of people who can be in common areas like conference rooms, workplace kitchens or dining areas? Will you require daily cleaning of personal equipment like briefcases, hard hats and purses as employees arrive each day? Will you have one-way hallways or walkways? Does your office cleaning program include increased sanitation of common areas? You will need to plan for and make these adjustments before returning employees to the workplace. You also need to decide how to communicate this information to employees.
In many state and local jurisdictions, employers must provide and require employees to wear face coverings. The CDC recommends individuals wear cloth face coverings in public where social distancing measures are difficult to maintain. OSHA has also issued guidance on face coverings, based on where your workforce falls on a scale from lower, to medium, to high and very high risk for contracting COVID-19 in the workplace. Have you considered whether you will require employees to wear face coverings, encourage them, or leave it up to their discretion?
If you require employees to wear a face covering in common areas, what form of covering will you provide? Since the CDC discourages use of N95 masks where there is not a high risk of COVID-19 exposure, will you provide disposable surgical masks or cloth face coverings? Keep in mind, OSHA imposes training and maintenance requirements that vary based on the type of face covering you provide to employees.
Government agencies permit and in some cases encourage or require employers to screen employees entering the workplace for COVID-19 exposure. This includes screening for exposure to or symptoms of infection. In industries with a high or very high exposure risk, you may even consider requiring a COVID-19 test. Employers must decide when and where to conduct the screening and how to record and store the information to maintain confidentiality consistent with United States Equal Employment Opportunity Commission (EEOC) guidance.
For example, will you screen employees on-site before the start of the day? Or can you accomplish the screening remotely, so that an employee who should not come to the workplace never has to leave home? Will you conduct a temperature screening? If conducting temperature screening at the workplace, will employees self-screen with employer-provided equipment or will they be screened by another employee? How will you train employee screeners, and what protective equipment will you provide?
You should also consider if employees must be compensated if they wait for some period of time in a screening line.
In addition to determining screening protocols for employees, you need to decide if you will permit outside visitors or vendors to enter the workplace. Do visitors need prior approval, and if so, how will you manage the approval process? If not generally allowing visitors, will you have protocols for exceptions? If visitors are permitted to enter the workplace generally or by exception, will you conduct a health screening or temperature check? Will you obtain the health screening at the time of the visit or before the visitor arrives, so that you can react to a screen that precludes the visit?
You also need to consider if you will ask visitors to complete a liability waiver or acknowledgment to maintain social distancing, hygiene and sanitation protocols.
For certain employers, business travel is essential. When returning to work, will you permit employees to resume business travel? If so, what will be the conditions? For example, will you permit travel by plane or allow use of public transportation? Will you allow international travel? Do you have systems in place to address the varying state and local travel bans and stay-home orders? Will you impose restrictions on employees returning to the workplace after travel, regardless of any symptoms?
If you permit business travel, be prepared to address travel restrictions not only in the jurisdiction where the workplace is located, but also in every jurisdiction that employees will travel to or transit through to comply with COVID-19-related regulations. Employers should also require employees to follow applicable CDC and OSHA guidance while traveling.
Employers should develop protocols for monitoring symptomatic employees and workplace visitors. If an employee or visitor shows symptoms of COVID-19 in the workplace, the individual should be isolated to the extent possible and sent home immediately. Employers should put protocols in place to:
If an employee or workplace visitor tests positive for or has been exposed to COVID-19, do you have systems in place for contact tracing? Do you know if you need to close the location? Do you need to send other employees home and if so, will the employees being sent home be paid or expected to work remotely?
Employers should take a consistent approach regarding when an employee who has exhibited symptoms or been exposed to COVID-19 can return the workplace, including whether to require return-to-work and fitness-for-duty certifications or COVID-19 testing.
Employers face a myriad of state and local leave regulations that dictate permissible uses and amounts of sick leave employees are entitled to accrue, use and carry over. Many of these have been extended to provide COVID-19-related coverage.
Additionally, the federal government enacted the Families First Coronavirus Response Act (FFCRA). The act gives paid sick leave and expanded paid family and medical leave to employees of companies with less than 500 employees.
Have you determined if your existing leave policies comply with new legislation? If you are covered by the FFCRA, are you prepared to address requests for leave under that act and to track leave provided to apply for available tax credits?
Government guidance also encourages employers to apply existing leave policies with flexibility to address COVID-19-related requests. You need to consider if your existing leave policy is sufficiently flexible or if you will provide additional paid sick leave and under what circumstances.
In addition to requests for leave, how will you address employees who have exhausted leave but are unwilling or unable to return to work? Employers need to understand whether and to what extent an employee can refuse to return to work and if accommodations need to be made for employees whose health conditions make them vulnerable. Will you treat it like an FMLA leave request or an ADA accommodation? What criteria will you use? Who will be the decision-maker? Will you use the same standard at every location, or will the standard vary based on state and local situations?
For employees currently working remotely, how do you plan to address those who oppose a physical return on the basis they worked well remotely during the pandemic?
The EEOC provides guidance to address each of these scenarios, but employers need to be prepared to implement that guidance in a fair and non-discriminatory manner.
Please contact Reed L. Russell, Raquel Ramirez Jefferson or any other member of Phelps’ Labor and Employment team if you have questions or need compliance advice and guidance. For more information related to COVID-19, see Phelps’ COVID-19: Client Resource Portal.