As shelter-in-place orders are being lifted, businesses are considering how and when to re-open workplaces that will look very different than they did before the COVID-19 pandemic. New employee safety considerations must be considered, and employers must be mindful of a range of evolving federal, state, and local guidance that addresses protective measures that should be taken as employees return to work. Advance planning and the implementation of “return to work” protocols that are clearly communicated to employees and regularly revisited will be essential. Some considerations for employers as they plan their return-to-work policies are set forth below.
Identifying a Return-to-Work Coordination Team.
Companies should identify teams responsible for developing, communicating, implementing, and regularly re-evaluating return-to-work plans. Members of the team likely will include company leadership with representation from human resources and, depending on a business’ particular needs, security and/or information technology departments. Team members should be well-versed in plan implementation and available to answer employee inquiries about return-to-work measures. In addition, team members should assume or assign responsibility for implementing particular parts of a return-to-work plan or monitoring it in particular areas. For example, someone may be delegated to be the “return-to-work” leader on a particular floor or in a particular department.
When Will the Office Re-Open?
Businesses will need to consider federal, state, and local guidance and how shelter-in-place orders apply to their particular industries and locations. Some companies are considered “essential businesses” under applicable guidelines and, as such, have been able to require some employees to report to the office for some time now. As return-to-work orders are issued, more employers should be able to similarly open their offices in the coming weeks and months. Employers will need to keep a close eye on governmental orders as to when re-opening is permitted and, if so, what restrictions may be in place with respect to public access (e.g., restaurants’ limited capacity; museums’ and shopping malls’ closure of touch-screen displays) within the re-opened workplace.
Who Should Work from the Office?
As we have noted in previous posts, employers have a general duty to maintain a workplace free from recognized hazards that are likely to cause death or serious physical harm. In discharging that duty in a COVID-19 era, employers should consider OSHA guidance regarding coronavirus-specific workplace preparation measures and whether, in order to facilitate social distancing at the office, they will only have a limited complement of the workforce report to the office at any given time. Many return-to-work plans will contemplate only a particular percentage (e.g., 25 percent; 50 percent) of the pre-COVID-19 workforce reporting to the office at a given time. Some plans will include schedule rotations so that people will only physically report to the office on particular days of the week. The right balance will depend on the operational needs of a business, the physical layout of an employer’s workplace, and how that office can be staffed to lessen close contact between employees. Unionized employers should consider whether aspects of their return-to-work plans – including details of their staffing — will be subject to collective bargaining, and discussions with applicable unions about those plans should occur now. In addition, individualized assessments should be made of particular employee roles, and companies should ask: Are there some tasks that can continue to be performed remotely, at least part of the time?
Should we Screen Employees for COVID-19 Before They Return?
Employers should coordinate with their building management to understand what screening measures, if any, management is implementing as a condition to accessing its premises. Companies should then consider whether they will undertake additional screening steps to lessen the risk that employees who are symptomatic or contagious as a result of COVID-19 are reporting to the office. Prohibitions against employees reporting to the office if they have had contact with individuals then-infected by COVID-19 in the previous 14 days will be a hallmark of most return-to-work plans, as will requirements that employees not return to work (or remain at work) if they have temperatures or are otherwise symptomatic. Employees should consider whether to request employee self-certifications and/or questionnaire responses about their COVID-19 exposure, and even whether they will require that employees have their temperatures taken before reporting to company premises. That practice is permitted by recent EEOC guidance. However, employers need to be mindful that through temperature-taking and health-related surveys, they are requesting confidential medical information that is subject to strict limitations on disclosure. So a protocol needs to be in place to identify who will receive that information, how and where it will be maintained, and when and how it can be shared.
Implementing New Workplace Practices to Maintain Social Distancing and Encourage Sanitary Workspaces.
Return-to-work plans also may communicate specific steps that employers will take to facilitate social distancing for those employees who return. Employers should ask: Will there be a limit on individuals who can be in an elevator at any particular time? Will workstations be spaced at new, more distant intervals? Will kitchen, break area, and restroom access be limited to a particular number of employees at any one time? Will “one way” hallways be implemented to lessen the likelihood of employees passing each other in close proximity? Will limitations be placed on visitor access to office sites? Will personal protective equipment like masks and gloves be made available? Will employees have designated printers and keyboards to lessen the frequency with which employees touch shared surfaces? Will employees be encouraged (or required) to bring lunch from home? Will designated “hand sanitizing” stations be established and new office cleaning protocols be emphasized? Companies’ return-to-work teams should think about the particular steps that can be taken in their workplaces, and those steps should be clearly communicated and regularly monitored. Those businesses whose workforces will necessarily come into contact with the public as customers, clients, or outside service providers, will need to consider what additional steps may be necessary to protect employees who are having that contact. In addition, employers should make sure there is a clear reporting policy in case employees believe that they have been, or may have been, contagious while in the workplace, and companies will need to consider what their protocols will be for notifying co-workers and taking any remedial steps in that instance.
Considering Individual Employee Requests.
Return-to-work teams, and individual supervisors, will need to consider what processes will be in place to address concerns of employees who don’t feel safe returning to the office, or who may have a medical or family situation that prevents them from doing so. As noted in a previous post, employees who have childcare or medical care responsibilities as a result of COVID-19-related conditions may be entitled to leave under the Family First Coronavirus Recovery Act (“FFCRA”). Employers will need to consider whether particular requests give rise to an FFCRA-covered leave and, if so, they should document that leave as one taken pursuant to the statute. In addition, if employees express reservations about returning, employers should be prepared to conduct individualized assessments about the reasons for those reservations and consider whether they need to explore potential accommodations under the Americans with Disabilities Act or other laws. Decisions of requiring particular employees to return to the office, or allowing employees to work remotely, should be made carefully and in coordination with return-to-work teams or other company decision-makers so that employers are implementing a process that allows for essential work to get done while also being mindful of employment discrimination laws.
Evaluating and Updating Return-to-Work Plans.
While a “return-to-work” plan will be an important document to create and share with employees as companies re-open, it also should be an organic one. A plan that a company initiates upon re-opening its office in May could be outdated by June. Employers should regularly evaluate their plans and communicate updated plans as governmental and medical guidance evolves, and as the practicalities of their existing return-to-work plans are evaluated.
