While much of the country remains subject to stay-at-home orders due to the spread of COVID-19, many businesses are starting to plan for employees' return to the office. Because COVID-19 is expected to remain in the community for the foreseeable future, companies cannot simply pick up where they left off before employees began working from home. As businesses await clearance to reopen their worksites and consider what makes sense for their business in terms of the timing and extent to which its employees should resume working onsite, they should develop an appropriate return to work plan that includes the action items set forth below.

• Prepare to Test Employees for COVID-19. The Equal Employment Opportunity Commission (EEOC) has now made clear that employers may administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus. Assuming testing is available for the workforce, employers must make sure that the test they use is accurate and reliable. Employers should review guidance from the U.S. Food and Drug Administration (FDA) and other public health authorities on this issue. Employers who plan to test employees should determine what the testing procedure will be and who will be tested, being mindful of privacy and discrimination concerns, and notice obligations under state law. In addition, employers must have procedures in place to ensure that the test results will only be used to determine whether employees have the virus and that they will be confidentially maintained in a separate medical file.
• Prepare to Take Temperatures. If testing for COVID-19 is not practicable or cannot be frequently administered, employers should require daily temperature screening of employees as a condition of entering the worksite to assess whether they have a symptom associated with COVID-19. In fact, certain localities are requiring that businesses scan employees' temperatures before allowing them to enter the worksite. Employers should determine: i) who will conduct the screening (i.e., self-administered or by designated persons), ii) what device will be used, iii) where the screening will be conducted, iv) whether notice is required to employees, and v) how the results will be used and maintained, being mindful of privacy and ADA (Americans with Disabilities Act) requirements.
• Develop a Screening Questionnaire. Employers should require employees and visitors to complete a screening questionnaire regarding their symptoms, travel, and exposure to COVID-19 before entering the worksite. Our model screening questionnaire can be found here. Employers also should determine what the company's response to specific answers will be and have a system in place for tracking the status of employees who indicate they are symptomatic or otherwise potentially infected with COVID-19. Employers should understand what types of responses may implicate newly enacted federal and state laws allowing employees to take leave related to COVID-19 and be prepared to address employee requests for time off for these reasons.
• Implement Procedures for Sick Employees. Employers should develop, communicate, and consistently apply rules prohibiting sick employees from coming in to the workplace. If the ill employee has a confirmed or suspected case of COVID-19, employers should have procedures in place to notify the employees with whom the ill employee has had contact and to clean and disinfect areas used by the ill employee in accordance with the Centers for Disease Control and Prevention (CDC) guidelines on Cleaning and Disinfection for Community Facilities. Employers should also institute guidelines for when an employee can safely return to work that are consistent with the CDC's recommendations. A tracking system should be in place to follow the status of employees who have a confirmed or suspected case of COVID-19 and those who have been in contact with the ill employee, and the system should include documenting information provided by employees about their condition, notifications provided to employees about the company's rules and procedures in this situation, and other steps taken by the employer to minimize the risk of spread at the worksite. Finally, employers' guidelines should include provisions for visitors that support the overall program.
• Take Steps to Provide a Safe Physical Workplace. The CDC recommends that employers take specific measures to help prevent the spread of COVID-19, including providing no-touch disposal receptacles, specific hand sanitizer, certain postings, and routine disinfection of frequently touched surfaces. In addition, employers should implement physical distancing protocols in the workplace as needed, including staggered work schedules, continued telecommuting for certain employees, mandated face coverings in common areas and where employees cannot maintain a safe distance from others, reconfigured workspaces to increase distance between employees, and directives for use of common areas (such as copy rooms, lunch areas, elevators, conference rooms, bathrooms) and in-person meetings. The extent to which these and other measures are implemented should be guided by the design of the workspace, applicable state and local orders, direction from the CDC and Occupational Safety and Health Administration (OSHA), as well as programs in place by building management in multi-tenant locations.
• Identify and Engage High-Risk Employees. Employers are permitted under federal law to make disability-related inquiries or require medical examinations of asymptomatic employees to identify those at higher risk of complications from COVID-19. Those at higher risk are currently defined by the CDC as those who are 65 years or older or who have underlying medical conditions, such as serious heart conditions, severe obesity, diabetes, and those who are immunocompromised. Employers should develop a questionnaire to identify such employees and start engaging with them to determine whether there is a reasonable accommodation that will reduce their exposure risk (i.e., continued telecommuting, change in work schedule or location). Such changes should only be made with the agreement of the employee at issue. Employers also should be careful not to implement policies that are neutral on their face—i.e., "high-risk employees must continue working from home"—but may disproportionately impact individuals in protected classes.
• Prepare to Respond to Employee Concerns About Return to Work. Employers should plan to respond to concerns raised by employees who are unwilling to leave home isolation and ask to continue telecommuting or other accommodations when they are called back to the worksite. Some employees may be entitled to continue working from home or to other accommodations because they have a covered disability under the ADA or state law. Such disabilities may include mental illnesses or disorders such an anxiety disorder that is exacerbated by the COVID-19 crisis. Other employees may live with high-risk individuals or have continuing child-care obligations that employers may choose to accommodate. Employers should determine in advance the amount of flexibility they are willing to extend and respond consistently to avoid potential discrimination claims.

The situation created by COVID-19 remains fluid. Employers should be prepared to address additional items outside the scope of this Alert, and to make changes to their policies, procedures, and plans as the situation evolves. Employers should stay current on the guidance at all levels of government and from the health authorities, and they should be flexible in their plans, including being prepared to have employees resume telecommuting arrangements if the COVID-19 crisis escalates again.