Ivo is a partner in Obermayer’s Labor Relations & Employment Law Department. He focuses his practice on representing employers, including advising companies on how to handle employee issues, and defending employee claims...Read More by Author
Returning to Work after COVID-19 Lockdowns: Mitigating and Managing
Although many businesses currently have their sights on “returning to work” as soon as lockdowns lift across the country, make no mistake, this will not be a return to “business as usual.” Until a vaccine is developed, COVID-19 will continue to persist in our midst, and employers must be ready to adapt and innovate within their workplaces in order to press ahead in this time of working during a pandemic. From staff schedules to sanitary processes, employers must be uniquely ready to be in control of their spaces, while also retaining the flexibility that such an unprecedented disaster requires. Below are a few best practices to consider as employers open their doors back up, bearing in mind that most companies will also be learning as they go in many respects.
1. Set Policies and Procedures Ahead of Time for the “New Normal”
The health of both employees and customers/clients should be at the forefront of any action an employer takes as it reopens. Many lessons can be learned from the US’ original missteps in handling the pandemic: the first among them is to be proactive, instead of reactive. Employers should be proactive as they bring their employees back by creating and promulgating general COVID-19 policies. These can include doing temperature checks before coming in, asking employees about COVID-19 symptoms before they start their work, doing actual testing for the virus, and contact tracing. Despite the fact that testing kits are not yet widely available enough to be an option for every employer, monitoring employees is a powerful tool in an employer’s arsenal. Should an employer suspect a case of coronavirus in their workplace, contact tracing can help quickly identify and cordon off those who may have had contacts with the suspected, infected employee(s). Employers, however, must be careful of legal considerations when asking certain questions of their employees, and are encouraged to contact an employment attorney for more in-depth analysis on what is and isn’t permissible to ask of an employee in their pursuit of maintaining a healthy office.
Employers can make social distancing easier by instituting staggered shifts where practicable. Instead of large meetings, employers are encouraged to use technology where and when they can to have meetings. Employers should also increase the frequency with which shared spaces are cleaned and sanitized, and should prohibit the use of some areas (such as breakrooms and community kitchens) altogether. Hand sanitizer should be plentiful in the workplace, and soap in bathrooms should be continuously stocked and full. Not only is frequent cleaning vital to employee health, but it may help stave off liability if an eventual case of COVID-19 is found to be contracted in the workplace. If in-person meetings cannot be avoided, employees should sit at least one chair apart from each other around a table, all the while wearing personal protective equipment (“PPE”). It also goes without saying, but for now, handshakes should be off-limits.
Employers should also consider enacting official policies by which all employees must abide. These may include: frequent hand washing; the wearing of PPE (masks and gloves); social distancing; limiting travel; etc. Employers can discipline or send employees home if they don’t abide by such published policies for the general health of the office writ-large, as long as such discipline is carried out objectively and uniformly. Employers can strengthen the effectiveness of these measures by posting signs and having employees sign copies of the policies acknowledging that they have read and understood them.
Lastly, client-facing businesses should consider limiting in-person attendance of customers or clients on the premises. More likely than not, clients will understand if a meeting is moved to a virtual setting, and will likely even appreciate your consideration of their health.
2. Communicate, Communicate, Communicate
Your employees and your clients want to hear from you. Not only have they been relegated to their homes too, but hearing from a confident point-of-authority can be both comforting and can stem the tide of rumors/disinformation before anything grows out of control. If you plan to enact uniform workplace policies upon your reopening, they need to be shared and well-published to your entire workforce so all are made aware of new practices and can comply. Equally important, you should let your clients and customers know about any revised hours, and whether visits may be made by appointment-only.
Communication is also a two-way street. Make sure you encourage your employees to communicate with your HR Department or their managers if they aren’t feeling well, or have other concerns about returning to work. Have managers check-in regularly with their employees on any possible symptoms they may be feeling. Employers have discretion to enact measures such as daily symptom questionnaires, temperature checking, etc. However, again, management and human resources should speak with Counsel before enacting any of these measures, since they have the potential to implicate employee rights.
Finally, employers should make sure that they have distributed the required Notice that employers must send to their workforces pursuant to new workplace rights given under the Families First Coronavirus Response Act (“FFCRA”). FFCRA applies to employers with 500 or fewer employees, unless they have been exempted by the Department of Labor. The notice (available here) can be distributed to employees via e-mail, if the physical space is not yet open.
3. Train your HR and Managers on Likely New COVID-19 “Hot Button” Issues
As businesses reopen, many employers will encounter employees who do not wish to return to work for various reasons. HR personnel and managers must be trained on how to deal with such cases, as the law on the same is both novel and evolving. Although each employee must be handled on a case-by-case basis, a good rule of thumb is that a generalized fear or anxiety over catching COVID-19 will not be sufficient as a reason not to come into work (and those who refuse to come into work with only such a generalized fear may not qualify for state or federal unemployment benefits). HR Managers need to be equipped to handle employees who claim fear, but in reality, have no legitimate reason to decline to return to work, especially when the workplace is open, and the employer has taken appropriate preventative measures.
However, HR also needs to recognize that some employees may qualify for FFCRA leave even if they are not sick (i.e., if schools are closed or childcare is otherwise unavailable), and should offer this leave when applicable. Such FFCRA paid leave will be reimbursed to companies in the form of refundable tax credits by the federal government, so employers should not hesitate to grant the leave for financial reasons when it is requested.
If employers become aware that the employee’s hesitation to return to work could be triggered by a disability, employers need to engage in the interactive process as required by the Americans with Disabilities Act (“ADA”). Prior to opening, HR managers should review the job descriptions of most employees, and divvy up which tasks of each job can or cannot be performed remotely, in order to keep office populations as low as possible.
Employers also need to remain cognizant of potential Fair Labor Standards Act (“FLSA”) and discrimination pitfalls, in a post-lockdown, pre-vaccine US. Hourly employees must continue to keep track of their hours regardless of where they perform work, and exempt employees need to be paid their full weekly salary in any week in which they perform any work.
Finally, employers who have laid-off or furloughed employees in the past month need to be mindful of how and when they bring employees back so as to avoid discrimination claims on the basis of legally-protected categories such as age, race, gender, or disability.
4. Be Cognizant of the Situation’s Fluid Nature
The bottom line is that COVID-19 is an unprecedented situation and will continue to require creative solutions. Unfortunately, the reopening process does not mean that we have re-entered “normalcy” once again. The status of the pandemic remains fluid, and re-closures could be possible if outbreaks reoccur. This means that employers should have contingency plans for additional closures or restrictions, which may include additional furloughs, telework arrangements, etc. Through the remainder of 2020 and beyond, managers and human resources personnel should keep abreast of updates from federal, state, and local governments, as well as guidelines from the CDC, the WHO, and state health departments. Throughout this process, good communication with employees, and consultation with counsel, is critically important. As always, HR Legalist and Obermayer’s COVID-19 legal response team will keep employers informed about new developments as employers transition to a return to work in the safest manner possible.
The information contained in this publication should not be construed as legal or medical advice, is not a substitute for legal counsel or medical consultation, and should not be relied on as such.