Could We Actually Be Going Back to Work? A Return to the Office Checklist for Employers

March 9, 2021

It seems as though we are finally turning a corner and a return to the office is in sight. Another vaccine was approved last week and states are starting to roll back restrictions to allow businesses to reopen. In light of this, employers should keep in mind that we are not in the clear for a full return to the office quite yet and we will still be operating under the new “normal” for the foreseeable future. This post is intended to give employers a quick checklist of items to consider and implement before allowing employees to return to the office on a regular or more frequent basis.

Comply with State and Local Requirements

Before returning to the office, make sure you check state and local requirements regarding occupancy limits and mask mandates. Many states are rolling back restrictions to allow employees to return to the office, to permit events with crowds, and to reopen public venues. It is highly important to check state, county, and municipal restrictions on occupancy, mask mandates, and social distancing requirements before finalizing your return to work plan, as restrictions often vary between different levels of government. Texas and Mississippi have lifted mask mandates and rolled back COVID restrictions entirely. Other states, such as Pennsylvania, have rolled back occupancy restrictions, allowing a 15% occupancy for indoor events, 20% occupancy for outdoor events, and has eliminated out-of-state-travel restrictions. However, Pennsylvania still requires enforcement of its mask mandate, social distancing, and handwashing. Cities such as Philadelphia have their own restrictions on occupancy to consider too. But, even if you are located in an area that has rolled back most or all restrictions, employers should make the best decisions for their work force that will allow them to continue operations.

Compliance with Sick Leave Policies

Due to the holiday spikes in hospitalizations and confirmed cases of COVID-19, many states extended their modified sick leave policies. The United States Department of Labor, issued guidance at the close of 2020 regarding use of sick leave in 2021. A more detailed examination of the DOL’s Guidance can be found in our previous post, Providing COVID-19 Leave In 2021: It’s an Option.  In Pennsylvania, as of January 1, 2021, employees that are not working due to an office closure can use paid leave during their first 30 days of employment, use anticipated paid leave during the first year of employment, and use paid sick leave when the employee is not sick or injured. Those who are working or teleworking are eligible to use up to 10 days of COVID-19 Emergency Paid Sick Leave, use anticipated paid leave, and use unpaid leave before exhausting their paid leave entitlements. Make sure to check with your state and municipality for their current sick leave policies before requiring employees to return to the workplace.

Be Prepared with an Outbreak Plan

As employees return to work, not all people may be vaccinated for a variety of reasons and children will not be vaccinated anytime soon. Moreover, research has not yet given us a clear answer on whether vaccinated individuals can nonetheless become infected and transmit the virus. Accordingly, your office (still) needs an outbreak plan. We have previously touched on whether you have to disclose the identity of employees who test positive within an office or whether an employer can mandate the COVID-19 vaccine in order for employees to return to the office. However, as occupancy restrictions are lifted and more people return to the office, employers should keep up with contact tracing, quarantine periods, and providing personal protective equipment. All employers should be prepared to return to remote workplaces or operating off reduced staff if there is an outbreak or exposure in the workplace.

OSHA Investigations and Enforcement

The Biden Administration issued an Executive Order on January 21, 2021 on Protecting Worker Health and Safety. Among many goals set forth in the Order, the Biden Administration directed the Secretary of Labor for the Occupational Safety and Health Administration (OSHA) to revise the guidance to employers on workplace safety during the COVID-19 pandemic, consider whether any temporary standards are necessary, and launch a nationwide effort for enforcement related to COVID-19 violations. It is anticipated that this increased focus will result in a significant increase in charges against employers. The courts have already seen a number of COVID-19 employment-related matters. Employers can get ahead of these issues by utilizing safe and compliant measures to avoid complaints and lawsuits.

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The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.