With signs that the virus is peaking in the US, and with some state Shelter-in-Place Orders scheduled to be lifted in the coming weeks, employers are turning their attention to planning for how best to bring employees back to work.
As with the initial outbreak, US employers can look to other corners of the world that are ahead of us in terms of the curve of the virus to help construct a blue print for reopening. As some countries scale back restrictions and start returning to daily life, the transition is purposefully gradual in an effort to safeguard against a second spike of infections. So, what should a US employer be focusing on as it strives to achieve a necessary balance between maintaining a safe workplace and putting people back to work?
There are eight key considerations employers must address in planning to reopen the workplace. A US employer's "playbook" for reopening should include a "chapter" on each topic as outlined below. While we provide a table of contents and high level advice here, stay turned for articles from our team in the coming days and weeks that will take a deeper dive into some of these areas.
Monitor the lifting of government Shelter-in-Place Orders to determine the appropriate time frame for returning to work. Italy, Spain, Germany, and other European countries are in the process of transitioning to reopen businesses in phases. Spain, for instance, is allowing workers who cannot work from home – like construction workers – to return to their jobs. Austria has allowed small shops to reopen, subject to social-distancing rules. Here in the US, the White House recently issued guidelines for "Opening Up America Again." The guidelines set forth three phases to reopen state economies, with each phase lasting, at minimum, 14 days. These guidelines, however, do not have the force of law, and do not supersede applicable state and county health orders. Finally, various states' Shelter-in-Place Orders have expiration dates, which if not extended or amended, will mean that the Order is lifted at the end of April, while others like Texas have announced that portions of the state will reopen starting April 20.
Evaluate whether some sort of phased re-opening with either a partial return of some functions or staggered schedules makes the most sense for your workforce. Determining if and how to coordinate a phased approach will be influenced by factors like location, sector, business type or size, and the health status of workers.
Workplace Safety & Prevention Strategies
The new normal requires continued physical distancing, expanded use of personal protective equipment and other counter-measures. Bringing employees back to work necessitates policies and practices regarding:
- General Health Screening
- COVID-19 Testing
- Personal Protective Equipment (PPE)
- Sanitation Measures to Maintain a Healthy Work Environment
- Physical Distancing
Employers should stay up to date on guidance from the Centers for Disease Control and Prevention (CDC), Occupational Safety and Health Administration (OSHA), and the Equal Employment Opportunity Commission (EEOC), and from state and local authorities. Key guidance documents are linked here:
Besides adhering to the guidance and creating new policies and practices, it is essential to train employees on any new health and safety procedures implemented to curb the spread of COVID-19.
Testing & Health Screening
To ensure workplace safety, employers will want to introduce testing and health screening procedures and protocols for certain employees and third-parties (customers, visitors, etc.) In March, the EEOC confirmed that the COVID-19 pandemic meets the "direct threat" standard for employee medical examinations and disability related inquiries. Employers do not violate the ADA by requiring employees to undergo medical examinations, such as temperature checks, or asking employees disability-related questions, such as whether the employees suffer from underlying health conditions that may make COVID-19 more severe for them. As with all medical information, the fact that an employee has a fever or an underlying health condition is subject to the ADA's confidentiality requirements.
- Temperature Screening and Thermal Scanning: Employers may measure their US-based employees' body temperature if doing so is job-related and consistent with business necessity. For example, there may be no job-related or business need to check the temperature of an employee who works in isolation, but there likely is a compelling business need to test employees who interact closely with customers or co-workers. However, employers should be aware that body temperature measurements may not be conclusive. Some people with COVID-19 will not have a fever. Other persons may intentionally or unintentionally suppress fevers by taking fever-reducing medications. Employers who institute temperature checks should do so in the least invasive manner possible. And again, if any data is retained after checking temperatures, it should be handled as confidential medical information.
- COVID-19 Testing: Diagnostic testing may be done if the testing is performed in the least invasive and most private manner feasible and so it does not reveal results to others. Assuming the testing is not covered by HIPAA, companies should include in their more general notification to employees information about the data that will be provided to the company by the healthcare provider and the manner for which it will be used. Companies must implement reasonable security measures to protect the test result data it receives from unauthorized access, acquisition, destruction, use, modification or disclosure. And companies must notify employees in California, Illinois, and approximately 15 other states in the event of a breach of their test result data in unencrypted form.
For all testing, it would be safer to engage a professional service provider trained on the use of the medical equipment, and who can handle the medical information properly in compliance with applicable health information and data privacy laws. For example, we would not recommend using security guards to administer the temperature checks, unless they were specially trained for that purposes, and can handle the medical information properly. There will need to be standardization as to when tests are used, the frequency of tests (especially important if testing for infection, rather than antibodies), and the documentation.
Companies should implement an internal policy that documents how employee health data and medical information generated from such testing will be protected once results are received from the third party health care provider. The policy should state that the tests would be applied neutrally and without regard to protected characteristics. Positive tests must be reported to applicable health department labs, so companies should ensure that any third party health care providers have contractual responsibility for such reporting.
We recommend investing in ongoing education for supervisors about protecting privacy of employee medical information/conditions, and monitoring ongoing changes to rules regulating employee health screenings.
Managing Employee Concerns About Returning to the Worksite
Prepare to address potential disability accommodation requests for legacy and new employees with medical restrictions. As employees are asked to return to the physical worksite, or new hires are on-boarded, it is likely that some may raise concerns for their safety at work, especially if they or a family member has a pre-existing medical condition that could put them or their family member at higher risk of infection. To the extent that such employees have been able to successfully work from home, there may be some questions raised about a permanent remote work arrangement. As when cases were initially being reported and employers were facing these concerns, it will be important to regroup and be prepared to think through the various potential legal entitlements, i.e., ADA, FMLA, OSHA, Workers' Comp and companies' policies (and state equivalents) as well as how those are impacted by new legislation such as FFCRA, when responding to employee requests.
Keep your COVID-19 working group intact and allow the working group to transition from crisis matters to recovery matters. If not already handled by another department, task the working group with drafting employee facing communications to ease the employee transition back to a regular working schedule. Consider establishing a hotline which employees can use to ask questions regarding the transition back to work and any other COVID-19 related questions, including mental health.
This is a time of high anxiety. Remain in constant communication with employees as locations reopen, so employees know what to expect upon returning to work. Include, for instance, any information regarding new health and safety precautions and information with respect to pay and sick leave.
Employers with a union represented workforce should remember their obligations under the National Labor Relations Act when making decisions affecting their employees. Most labor agreements anticipate and provide for the return of laid off workers. Reviewing these provisions to identify any areas not already addressed will permit planning for potential consultation/negotiations with employee representatives, unions, and/or works councils regarding newly adopted or imposed conditions in a re-opened facility. Prepare for the potential that representatives may push back based on safety perceptions depending on the scope of the pandemic in a particular area and/or based on phased in store re-openings.
Manage seniority/bumping rights when filling labor gaps.
Develop a local strategy particularly focusing on preserving rights to leverage short term employment arrangements for new hires covering legacy employees away on statutory/approved leaves of absence.
Employers navigating the pandemic know that staying compliant during this period has meant following an unprecedented intersection of wage and hour laws, anti-discrimination laws, health and safety laws, the Americans with Disabilities Act, various new (and old) paid sick and family leave rules and much more. As we transition into the new normal back to work, consider how to handle any potential employee claims that may arise from the measures taken during the crisis period. Think about how to address specifically any discrimination related claims, particularly regarding individuals who have tested positive for COVID-19 and those of certain ethnic and age groups. Be ready to open investigations and to adequately discipline employees if necessary to prevent future claims.
Know there are already workers protesting and suing where they feel like their employers are not doing enough to protect them on the frontlines, or are bringing them back too soon. This only underscores the importance of strong safety standards and of following Shelter-in-Place rules. As a corollary to the rise of complaints about workplace conditions, now is the time to re-look at whistle-blower policies and hotlines to ensure robust mechanisms are in place to encourage reporting, conduct effective investigations and to protect against any related retaliation.
As we move into unchartered territory, planning ahead and communication with employees is key. Developing a playbook is a good start, but this will be an iterative process. As such, one of the most important parts of returning to the new normal is staying informed. US employers who make it part of their routine to pay attention to the following issues will be well positioned to navigate through these unprecedented times:
- Any local government orders and how they interact with the company's decision to increase operations in various jurisdictions;
- Staying abreast of COVID-19 specific government orders or regulations relating to wage and hour issues;
- Monitoring the websites for the EEOC, OSHA and the CDC for updated guidance.