The past three months have not been “normal” times for employers by any means. Many employers scrambled to implement plans to terminate, furlough or lay off workers, while many other employees have been working remotely (teleworking). Now that federal, state and local “stay-home” orders are gradually lifting, employers are looking toward bringing workers back into the workplace. The process for bringing workers back needs to be carefully and thoughtfully planned. Each workplace is different and there is no one-size-fits-all preparedness plan that will work for all workplaces. Unique situations are bound to arise, but many issues for returning to work will be faced by most employers. Below we address some of the common questions and issues employers will face. We cannot emphasize too strongly that the manner in which these issues need to be addressed often will be a matter of state, county, or even city requirements, all of which are in a state of continual change.
The Need for Advance Planning
Can’t we just tell our workers to “come on back?” Or do we have to do more?
- Employers need to carefully develop a written return-to-work plan (aka an Infectious Disease Preparedness and Response Plan (“IDPRP”)). Such a plan needs to address applicable federal, state and local return-to-work orders, workplace safety issues, screening measures, and other employee health-related matters.
- Analyze applicable federal, state and local orders that may impact the way in which your business may reopen. Adopt procedures to ensure compliance with these orders and other federal, state and local guidance.
- Some of the requirements – including those implemented at the federal, state and local level – will vary based on the employer’s industry.
- The White House’s guidelines for “Opening Up American Again” can be found here.
- Centers for Disease Control and Prevention (“CDC”) guidance for businesses and workplaces can be found here.
- Remember to check state and local health authority guidance as well.
- Analyze applicable federal, state and local orders that may relax or repeal applicable stay-home or quarantine orders.
- Do such orders impose new requirements on your business?
Who should come back to work and when?
- Employers should take steps to address workplace safety before workers return. See section below on Workplace Safety Considerations.
- Consider taking a “ramp-up” approach, whereby workers in essential positions return first, with others returning over a period of time.
- Evaluate whether employees can continue working remotely and/or whether there is a desire or need to continue reduced work schedules.
- Employers should consider implementing a policy to address those workers who are classified as high-risk for development of serious illness due to COVID-19 by the CDC and other health agencies. These employees may seek accommodations or be afraid to come back to work without accommodations or additional safety measures.
- Consult counsel to determine the impact that employee headcount will have on government loans and tax credits, including those provided under the federal CARES Act.
- Determine whether different procedures are required for employees who will be re-hired following termination from employment (and thus, considered new hires) versus those who are being recalled from a temporary furlough or layoff.
Getting the Workplace Ready
What measures should we take to get the physical premises ready?
- Ensure facilities meet applicable rules and regulations. As mentioned above, these will vary by jurisdiction.
- Conduct advance cleaning of the workplace using approved and recommended disinfectants and cleaning procedures.
- Consider whether you need to obtain resources from external vendors to assist with return-to-work procedures mandated at the state or local level, including temperature or related medical screenings/questionnaires.
- Ensure adequate supplies of cleaning and personal protective gear, e.g. hand sanitizers, gloves, face masks, face shields, etc.
- Ensure the workplace has required postings under the new federal Families First Coronavirus Response Act, as well as any postings required by state or local laws.
- Install signage reminding employees and guests of suggested hygiene standards and any other safety measures that have been adopted to thwart the spread of COVID-19 in the workplace.
- Again, the signage requirements likely will vary by jurisdiction. For instance, some state orders recommend signage signaling that nobody should shake hands in the workplace.
- If you are in an office building, contact building management to find out what the building is doing for common areas and building access, and communicate that to your employees in advance so that they will know what to expect when they come to the office.
Employee Compensation and Unemployment Considerations
What do we do about employee compensation?
- Consider the impact that recalling employees to full or part-time work may have on unemployment or partial unemployment benefits employees may be receiving.
- If employees have had their salaries or wage rates reduced, consider criteria for possible future adjustments.
- Consider the impact applicable federal and state wage and hour laws will have on any changes in employee compensation and/or employee classification (i.e., status as an exempt or non-exempt employee).
- Determine whether state wage laws require any form of notice to employees before reducing pay.
- If your business is enrolled in the SBA Paycheck Protection Program, remember that employers have until June 30, 2020 to restore full-time employment and salary levels for changes made between February 15 and April 26, 2020.
- Under the SBA Payroll Protection Program loan, an employer should make a good-faith, written offer to employees to return to work.
What impact will the reopening of the business have on unemployment benefits entitlement?
- Employee entitlement to unemployment insurance benefits will vary by state. State guidance on unemployment insurance benefits entitlement is changing regularly.
- Rules implemented by the state as a result of the expansion of unemployment insurance programs through the federal CARES Act also may impact unemployment benefits entitlement.
- Some states have carved out exceptions for employees who are unable to return to work due to childcare issues or because they fall into high-risk categories.
- Partial unemployment insurance benefits may still be available for some workers returning to work on a reduced schedule. These rules will vary by state.
- Under some state rules, employees who refuse to take available work may lose out on their entitlement to further unemployment benefits.
Worker Health and Safety
What measures should we take to help protect our workers? What do we do if someone gets sick?
- Consider whether you must or will take measures to ensure social distancing in the workplace, i.e., at least 6 feet between individuals.
- Assess whether you should or must have workers and visitors wear protective face masks. An SGR state-by-state employer guide to face covering regulations can be found here.
- Assess what personal protective equipment (PPE) the company will provide to employees and what you will encourage employees to wear/use.
- Consider whether you will screen or test employees before they return to work. Some states and/or localities are requiring employers to conduct mandatory screens of employees prior to entering the workplace (this also will vary based on the employer’s industry).
- Where screening is not mandatory, employers have various options for implementing screening measures. Some have opted to allow employees to self-screen while reserving the right to conduct follow-up testing, while other employers are taking a broader approach to screening and are conducting their own screens of employees prior to returning to work. Possible screening options include, but are not limited to:
- Taking the temperature of employees (and other guests) before they enter the workplace;
- Requiring employees to be tested for COVID-19;
- Requiring anti-body testing of employees;
- Screening employees through use of a questionnaire that asks employees about potential COVID-19 symptoms and/or potential exposure to the virus; and
- Requiring employees to self-certify that they have not been diagnosed with COVID-19, do not have signs or symptoms of the virus, and have not been knowingly exposed to the virus.
- Consider whether applicable federal and state wage and hour laws require employers to compensate employees for screening time and/or time spent waiting in line for screening or completing screening questionnaires.
- Assess employee training and certification requirements for PPE, General Sanitation, Hazard Communication, and other OSHA standards.
- OSHA considerations
- For a more extensive look at OSHA-related guidance to reopening the workplace, please see this SGR Guide.
Should we make changes to our “regular” way of working?
- Consider staggering work shifts and break times to reduce the number of employees in the facility or a work area at any given time.
- Limit the size of meetings and encourage virtual meetings when possible.
- Limit non-essential travel.
- Consider altering employee start and stop times to reduce number of employees coming into or leaving the facility at any given time, including possible elevator usage plans.
- Ensure that information collected from or about employee health is kept confidential and separately from the employee’s regular personnel file.
Do we need to revisit our teleworking policies?
- Consider if telework may be a reasonable accommodation under the ADA or analogous state laws.
- Even if not an ADA accommodation, consider benefits of liberalized remote work policies.
- Consider allowing employees to continue to work remotely, particularly if things have been going well.
- Develop protocols for dealing with at-risk employees. This may include employees age 65 or above and those who are in medically vulnerable groups.
- If telework is not an option, consider eligibility for additional leave under company policies, the FMLA, and state or local leave laws.
- Consider temporary changes to leave and teleworking policies specifically tied to COVID-19 pandemic.
- Understand and comply with laws relating to reimbursement of employee expenses, both with regard to the period of time covered by stay-home orders and in connection with any continued telework.
Develop Protocols for Suspected or Confirmed Future COVID-19 Cases
What should we do to prepare for future instances of employees who may be diagnosed with COVID-19 or who are exposed to someone with it?
- By all accounts, COVID-19 will be around for months (if not years) to come. Employers need to establish protocols for the handling of future situations which should, at a minimum, include:
- Instructing employees to stay home if sick;
- Informing employees who to notify if symptomatic;
- Designating key HR or management personnel with knowledge of how to handle concerns;
- Identifying when employees will be required to self-quarantine based on own symptoms or exposure to others;
- Ensuring compliance with applicable leave laws;
- Establishing duration of quarantine; and
- Establishing conditions for return to work.
- Assess reporting obligations under workers’ compensation and OSHA regulations.
- Establish protocol for contact tracing for workplace COVID exposure.
- Establish protocol for assuring employee privacy.
- Continue to monitor CDC guidance as recommendations tend to be updated regularly.
Communications with Employees about Returning to Work
How should we address these issues with our workers?
- Provide employees with written plans addressing the timeline for return, measures being taken to safeguard the workplace, and employee health and wellness initiatives.
- Ensure employees are regularly updated of the company’s plans.
- If employees are subject to a collective bargaining agreement, coordinate communications with any applicable labor unions.
Employment Policies and Practices
Are there additional legal considerations to consider?
- Update employment policies, including those related to workplace safety, vacation or paid time off, attendance, work hours, telework, accommodation procedures, privacy and travel.
- Ensure leave policies are updated to address newly-enacted leave requirements, such as those under the paid sick leave and expanded FMLA provisions of the federal Families First Coronavirus Response Act, as well as any similar state or local laws.
- Rather than implementing new laws, some state and local jurisdictions have expanded existing leave and safety-related laws to address COVID-19 workplace issues.
- Ensure that decisions on who to bring back into the workplace and in what order are not done in a discriminatory manner and do not have an adverse impact on a particular protected group, i.e. sex, religion, age, race, national origin, etc.
- Ensure terminations, furloughs, layoffs and recalls are done in accordance with any applicable collective bargaining agreement.
- Assess workplace accommodation considerations for employees who may contract the virus, show signs or symptoms of the virus, or who may come into contact with others who have such symptoms.
- Remind employees that if they need an accommodation, they should follow company protocols for requesting such.
- Review applicable EEOC guidance on the impact of the ADA and COVID-19 considerations, including guidance found here.
What do I do about employees who refuse to come back to the office?
- Engage with the employee to understand their reasons for refusing to return to the office.
- Consult with counsel before taking any adverse action against employees who may undertake collective concerted activities to protest an employer’s handling of workplace safety issues, as such conduct may be protected under the National Labor Relations Act and the Anti Retaliation provisions of OSHA.
- Do any applicable guidelines place the employee in a high-risk category (e.g., age, underlying health conditions) for developing severe illness as a result of COVID-19? Employees with disabilities may be entitled to reasonable accommodation under the ADA, and individual circumstances need to be considered.
- If the conclusion is that the employee’s concerns are not objectively reasonable, then the employer should consult with counsel about the appropriate next steps.
If you have any questions about this client alert, please contact your SGR Labor and Employment counsel.