Presented by Karla Grossenbacher, partner; Elisabeth Watson, partner; and Ann Marie Zaletel, partner, Seyfarth Shaw LLP
Before you take employees back. First, consider the federal, state and local guidance, laws and orders. These may be changing rapidly. Look at OSHA regs, which may vary by region, and consider the sick leave, family and medical leave, and other workplace laws. Be mindful of the Family First Coronavirus Response Act, which — like most other coronavirus-related laws — sunset on Dec. 31.
When you bring employees back. A decision to be made: Do you want to bring everybody back as soon as permissible, or take a more phased-in approach?
So, who should come back, and when? Consider that certain employees may not be permitted to return to work because of COVID-19 disease or symptoms. Others may be on legally-protected leaves. Still others may be at high-risk for coronavirus, such as those over 65 years old or who have underlying medical conditions. (Be aware of an EEOC determination that employers cannot prohibit those with underlying conditions from returning to worksite, just because of those conditions.) And are there employees with logistical barriers such as childcare or transportation issues?
Next step: Screening. Determine if you can screen individuals for safe return, such as temperature checks, which may actually be required under some orders.
Transitioning to return to work. Let people working remotely or who have been furloughed know that they will soon be returning to work. Ask if they anticipate any barriers to return. Figure out how to get back equipment remote workers may have taken home. Be sure to check their vacation time or PTO taken.
Wage and hour considerations. Some exempt employees may have become non-exempt during the pandemic because of their wage level.
Welcome back! It’s a good idea to create a welcome back package with policies related to the specifics of returning to work. Make this separate from the handbook, since policies likely will sunset. This package should include policies on time off, workplace accommodations and continued remote working. It’s a good idea to remind employees about harassment policies.
Remote working continued. You may be getting requests to continue working remotely because employees are high-risk, are fearful or have logistical problems with returning. If you are going to continue remote working, adopt an emergency remote work policy that might be sunset. Communicate that it is a temporary policy.
Protocol disclaimers. It’s not really possible to eliminate all risks. The goal is to minimize risk. There also is no one-size-fits-all protocol, which will vary by industry, union situation and other factors.
Social distancing protocols. These are most important during the return to work — and for the foreseeable future. Those “open office” spaces designed to get people together are now a problem since the priority is to distance employees. Consider repurposing common areas such as conference rooms and lunchrooms to keep that six-foot social distancing protocol. You may want to limit in-person meetings for the reasonably foreseeable future. Some employers are planning to hold small meetings outside. Inside meeting places should be well-ventilated and allow for the six-foot rule.
Shift changes. This goal is to limit the number of employees working together at one time. Stagger meal times and breaks so not everyone is taking these times at the same time.
Health and safety concerns. First, name a point person or persons to be in charge of these protocols. Consider a temporary safety consultant to examine the workplace and health and safety practices. Among the considerations: Whether or what kind of screening, hand-washing protocol, etc.
Come clean. These are obvious protocols that include a deep cleaning as the workplace opens, removing shared equipment, such as staplers, and disinfecting frequently touched surfaces.
Screening. It’s important. There’s not only the legal liability that you might want to avoid. But taking health and safety seriously is good for your reputation with the public and with your employees.
Checking checklist. EEOC approves of screening, including questionnaires that are given on arrival to work or before they arrive. Some employers are using an electronic questionnaire; when they arrive at work they show their phone with an OK sign.
How are you feeling? Here are some permissible questions to ask employees as they return: In the last 48 hours have you had a fever, cold, cough, chills, shortness of breath, muscle pains, gastrointestinal stress. Other questions: have you been in contact with anyone who has or had COVID-19, have you traveled to any nation on watchlists, such as China or Iran. Anyone answering yes to these questions should be told to leave the premises and go to their health provider. (Be sure to disinfect all chairs, doorknobs, etc. the person may touched.)
Documenting your screening? You need not keep records, but — if you do — remember the ADA requirements to keep it confidential and give access only to a very limited number of managers.
Taking temperatures. Best practice is to have the employees take their own temperatures, taking care to wipe down the thermometer before and after use. Temperature red flag: 104 degrees or above.
More advanced testing. The EEOC allows testing for COVID-19, including diagnostic and antibody testing. But there are serious drawbacks to this testing, including its uncertain accuracy, cost and availability.
So, you have an employee with COVID-19. What’s next? Do contact tracing for people the employee might have been in close personal contact with, isolate and disinfect their workplace area, and tell people in contact to self-quarantine for 14 days.
Contacting contacts. Be aware of ADA requirements for confidentiality, including not identifying the person with COVID-19 to traced contacts. There are apps for contact tracing.
Bringing back positive-testing employees. You have two options. The first is symptom-based with no fever for past 72 hours and 10 days since testing positive. The second is testing-based with two negative tests 24 hours apart.
Protocols for non-employees. You need to figure out what protocols you’re going to have for visitors, vendors, independent contractors, customers and clients.
Protocol fatigue. As time goes on, anticipate resistance to health and safety protocols. It may become increasingly political as the election nears. Be sure to enforce these protocols uniformly. Lax enforcement could invite litigation from plaintiffs’ attorneys. Consider that employees who complain may later become regarded as whistleblowers.
Knock, knock. Who’s there? OSHA! The agency has put employers on notice that it will soon begin to make surprise inspections, which had been suspended during the pandemic.
Be prepared. For a second wave of COVID-19 forcing a shutdown or partial shutdown. For a rash of sick leave. For changing federal, local and state regulations and order.
Elisabeth Watson said it: “Accept the fact that when you return to work that it will be a new normal … and, to be successful, you will have to accept and adapt to the new normal.”
You asked: Can you ask an employee to work, say, three days in the office and two at home? Absolutely, and it might be a good idea. Some employers designate two teams that work separately.
You also asked: As an essential business, newspapers have been open all along. Why do we need a plan? You still want to review your plan and make changes to it because the orders and the guidance, in particular the CDC guidance, is changing all the time.
Check out this checklist from Seyfarth Shaw LLP: Seyfarth.com/returntobusiness
Want to contact the Seyfarth presenters?
Karla Grossenbacher is at kgrossenbacher@seyfarth.com or (202) 828-3556
Elisabeth Watson is at ewatson@seyfarth.com or (213) 270-9699
Ann Marie Zaletel is at azaletel@seyfarth.com or (310) 201-1560
