Webinar, "Back to Business, Returning to the Workplace Part II"
Shifting Times is a series of 30-minute collaborative webinars that explore ways in which businesses can navigate through the transitional times caused by the COVID-19 event.
See below for a recorded webinar featuring Goulston & Storrs attorneys, Josh Davis and Elizabeth Levine, discussing challenges, possible solutions, and potential liability employers face as workspaces reopen and employees return to work in an unprecedented and completely uncertain time.
Related: Back to Business, Returning to the Workplace Part I
WORKPLACE SAFETY PLANS
Employers have difficult challenges ahead. Because they have a legal obligation to provide a safe workplace, they must meet the standards of care provided by OSHA, the CDC, state agencies, and other authorities while also providing “reasonable accommodations” that may be required for people with disabilities. They also must navigate EEOC requirements and other rules that could sometimes conflict with new and emerging COVID-19 safety guidelines.
In developing safety plans for the workplace in this new era, employers may want to consider the following points, some but not all of which were raised in our prior webinar on this topic:
- Published guidelines. Guidelines published by local, state and federal authorities, such as the CDC, provide employers with a suggested standard of care that may prove to be a “safe harbor” in defending lawsuits, though that has not yet been established.
- Medical questionnaires. As noted in our prior webinar, employers should at least consider the use of questionnaires to screen all employees or visitors prior to workplace entry or re-entry. Such questionnaires may screen people out based on recent travel to “hot zones,” recent known or potential exposures to the virus, recent symptoms, and other factors that may change as we learn more about COVID-19. Click here to view our model screening questionnaire.
- Medical testing. For most employers, daily or frequent virus testing is neither feasible nor required. Furthermore, such testing provides only a snapshot depiction of workforce health, the validity of which is transitory as people are in motion. But reasonable tests should be taken to reduce the chance of a workplace outbreak. Thus, temperature monitoring should be considered, and the CDC recommends excluding anyone from the workplace who has a temperature at or above 100.4 degrees. Massachusetts Gov. Charlie Baker has set the bar lower at 100 degrees, and any given employer may have reasons to set the bar even lower. The employer may use an honor system, asking employees to take their own temperatures and exclude themselves if feverish. An employer might also consider hiring a nurse or other third-party professional to do any testing, particularly if it involves more than just temperature taking. Few employers are equipped to do their own testing, and liability for failure to follow proper procedures is a legitimate concern.
- Record-keeping. As noted in our prior webinar, most employers are not equipped to do medical record-keeping. For them, it may be best to do only “pass-fail” temperature screening without keeping records of actual temperatures. Written or digital responses to questionnaires should be checked and stored in a safe, secure manner by a designated responsible custodian.
- Staggered schedules. Employers should consider whether it is feasible and prudent to stagger the work schedules of employees to cut down on workplace crowding. Staggered schedules with different hourly and/or daily shifts could also enable employees to commute more safely during less crowded public transit hours.
- Elevators. Within private elevators, employers might consider the use of six-foot markers and capacity restrictions. They could also consider putting tissues in the elevators to be used when pressing buttons, along with trash cans for easy disposal.
- PPE. Every workplace is different, but all should require the wearing of masks or other face-coverings, at least outside of personal offices. Medical grade quality is not required or suggested at this time. For some industries or some employee positions that involve frequent handling of materials, gloves may be helpful safety aids and should be supplied. But in most office settings, it should be sufficient to make hand sanitizer easily available in many locations (if possible). In any event, frequent hand washing should be encouraged, particularly after any questionable contact. Signage to remind people to wash hands can be helpful too.
- Other safety tools. Employers should consider any other simple safety innovations that fit their workplace needs. For instance, they could make boxes of tissues available in numerous areas where doorknobs or other surfaces are frequently touched, along with trash cans for easy disposal.
Employers are also facing new challenges in dealing with employees who have physical or mental health conditions that affect their ability or willingness to work. It will be beneficial for employers to consider the following when dealing with employee management issues in the COVID era. Some, but not all of these considerations were also raised in part 1 of our webinar series on this subject.
- Workers who are legally excused from workplace attendance. Many employers want to know who is legally excused from in-person attendance. Among those who are excused are anyone who tests positive for COVID-19, anyone who is in quarantine due to COVID-19 exposure, caregivers for COVID-19 victims, and those who are currently seeking a diagnosis due to their symptoms.
- Vulnerable workers. Employees that have health conditions that put them at greater risk than others might be reluctant to return to work. Employers may have to make “reasonable accommodations” for those workers and would be wise to consult with counsel before requiring the most vulnerable to return to work.
- Older workers. It is not likely that a court would find any existing legal protections for workers who wish to avoid the workplace solely because of their age. Nonetheless, many older workers may test an employer’s resolve, and if they do, a mass layoff of an older population could become problematic, if only from a public relations viewpoint. Creative compromises with reluctant older workers may provide short-term bridge solutions until fears and localized infections subside.
- Anxious workers. General anxiety about returning to work is not an excuse for staying home. However, some employees may have legitimate anxiety or mental disorders that would support a claim for “reasonable accommodations.” Again, compromise solutions may be less costly and more effective than simple terminations for failure to report to the workplace.
- Grounds to deny workplace access. Some employees or third parties may want access to the workplace who should not have it. An employer should be able to deny access to anyone who tests positive for COVID-19, and anyone who refuses to complete safety questionnaires, have their temperature taken, or follow other reasonable workplace safety protocols. But an employer cannot deny access to those who want to work on the sole basis of age or other prohibited discrimination.
- Doctors’ notes. Some employers have inquired whether they can require doctors’ notes to certify the health of a returning worker, especially one who has been ill with COVID-19. As a practical matter, it is unlikely that most doctors would supply such certifications, and a policy of requiring doctors’ notes would present multiple legal risks that are not worth considering.
- Traveling employees. Executives, salespeople, and other types of employees may need to travel as part of their jobs. If travel is necessary, an employer should permit and facilitate travel by automobile or other means that is safer than using potentially crowded public carriers. If nothing else, alternate means of travel could reduce days lost to sickness of all kinds.
- Enforcement of workplace rules. One final challenge for employers deserves attention, and that is making sure that new protocols are enforced evenly and consistently. With so many new rules, uneven enforcement is almost inevitable unless there is a plan in place to ensure accountability for and performance of enforcement responsibilities.
If an employer does suffer an actual or suspected COVID-19 outbreak in the workplace, an immediate and well-planned response will be necessary. Counsel can provide helpful guidance for navigating the new thicket of rules and recommendations for infection response and workplace safety. Each employer will need to know when and where to close operations, how to clean workplaces properly, and how to do contact tracing in the event of an outbreak.
When conducting a workplace response to any infection, an employer should consider the following points, which were also raised in part 1 of our webinar series:
- Contact tracing. While state health departments are likely to conduct their own contact tracing, this does not relieve employers from taking reasonable steps to ensure continuing workplace safety. So, it is important to check with infected employees to see who they might have put at risk while in the workplace. As more is known about the virus, risk assessment standards may change, but at a minimum, employers should determine who has been within six feet of an infected person for more than 15 minutes (this standard was articulated in April 2020).
- Privacy. When informing an employee at risk of infection, it is important not to reveal the identity of the infected person. It is sufficient to inform the person at risk that they should talk with their doctor because they could have been exposed on a certain date. Resist the temptation to answer understandably prying questions.
- Quarantine. Again, what we know about the virus is subject to change, but as of the date of this webinar, an exposed person should be quarantined for at least 14 days without suffering any symptoms of illness before returning to the workplace.
- Transparency. An outbreak of any illness is likely to spark numerous questions from employees now. To maintain trust and credibility with workers while avoiding potential legal actions, it is important to be honest and clear in all communications without revealing information that threatens anyone’s privacy. Any attempt to discourage questions is only likely to fan the flames of speculation and distrust.
Many employers have expressed concerns about workers’ compensation exposures associated with COVID-19. While this is not within our bailiwick, we have told employers that comp claims generally require some proof of injury “at work.” Because it is so hard to know or prove exactly when an infection occurred, we think it is unlikely that employers will see a tidal wave of comp claims related to COVID-19, but the science is changing, and the law may evolve over time as well.
Since our original input on this subject, there have been recent legal developments. For example, the states of Illinois and Kentucky have issued administrative guidance that workers infected with COVID-19 will be presumed to have been infected at work. This will likely be challenged, but it is also possible that other states could follow this example.
Also, OSHA has rescinded its prior guidance announced in April 2020, which relieved most employers from any duty to determine whether COVID-19 cases among their employees are work-related. Now, OSHA is requiring an employer with more than 10 employees to conduct a reasonable investigation as to whether cases of COVID-19 among its workforce are work-related. If so, employers will be required to record the cases using an OSHA-prescribed log and Incident Report form. A summary of the recordable incidents on the OSHA log must then be reported annually.
The new policy requires recording of cases: (1) for each “confirmed” COVID-19 case, as defined by the CDC; (2) for each case that is “work-related”; and (3) for each illness that meets at least one of the other recording criteria established by regulation. Under existing regulation, an illness or injury is recordable if it results in death, days away from work, restricted work or transfer, medical treatment, or loss of consciousness.
For further “back to business” guidance, employers can check out online publications of applicable local, state, and federal workplace rules and recommendations. There are two CDC web pages that may be of particular interest.
- Recently released CDC guidance on workplace re-openings (dated May 2020):
- A web page with links to multiple CDC guidance publications that come out periodically: