As states begin lifting COVID-19 restrictions, employers face the challenge of opening workspaces and returning employees. View the recorded webinar below as Goulston & Storrs attorneys Josh Davis and Elizabeth Levine discuss challenges, possible solutions, potential liability, and the complexity of making decisions in an unprecedented and completely uncertain time.

WHY and WHEN to RETURN

As employers grapple with difficult decisions on when and how to reopen their workplaces, they may find it helpful to consider these questions:

• Can all or part of the business workforce continue to be functional in a remote way?
• Is now the optimal time to reopen the enterprise, or will conditions for profitable operation be more favorable at a subsequent time with acceptable losses in the interim?
• What is best for the customers, employees, and other stakeholders?
• What are the benefits, costs, and risks of complete reopening versus partial reopening or continuing shutdown?

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:

• Medical questionnaires. Employers should 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 conducted to reduce the chance of a workplace outbreak. Thus, temperature monitoring should be considered (more guidance on temperatures to follow in part 2 of our series). Employers should 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. For employers that are not equipped to do medical record-keeping, it may be best to do only “pass-fail” temperature screening without keeping records of actual temperatures.  But written or digital responses to medical 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.
• Conference and meeting rooms. Employers should consider placing reasonable restrictions on the use of conference rooms and meeting places. They might deploy six-foot distance markers in these rooms and encourage people to use Zoom or other video-conferencing tools instead of in-person meetings in the workplace.
• Work areas. Office bullpens and cubicles may need to be reconfigured or safety shields deployed if these workspaces could impede social distancing.
• Cafeterias and kitchens. Employers might want to consider restricting the use of cafeterias, kitchens, and break rooms in some manner, whether by staggered shifts or by constant headcount limitations. Employers may also consider contactless food delivery to offices.
• 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 disposal.
• PPE. Every workplace is different, but all should require the wearing of masks, at least outside of personal offices. For some industries or some employee positions that involve frequent handling of materials, gloves may be helpful 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

EMPLOYEE MANAGEMENT

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.

• 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 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 solely on the 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.

INFECTION RESPONSE

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:

• 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.

WORKERS COMPENSATION

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 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.

REFERENCE MATERIALS

Recently released CDC guidance on re-openings:

https://www.cdc.gov/coronavirus/2019-ncov/downloads/php/CDC-Activities-Initiatives-for-COVID-19-Response.pdf

CDC guidance publications that come out frequently:

https://www.cdc.gov/coronavirus/2019-ncov/communication/guidance-list.html?Sort=Date%3A%3Adesc

Resources

• Watch the Recorded Webinar