The rapid onset of the coronavirus crisis stripped many employers of the opportunity to prepare an orderly retreat from the physical workplace. Following the government-imposed stay-in-place orders, employers shifted their attention to managing a remote workforce, coping with the financial impacts of the economy’s precipitous closure, and digesting the rapid legislative developments that ensued. While we do not know what the “normal” American workplace will look like exactly during and after the pandemic, employers should plan now for this transformation. The Mintz Employment, Labor and Benefits section is pleased to provide this Roadmap for Employers in the Time of COVID-19 series that will provide guidance on critical issues employers should focus on as they prepare for what promises to be a very different workplace.
Compliance with Existing Regulations Governing a Safe Workplace
The extended absence from most physical workplaces removes the concern that workplaces may continue to harbor active infections. But employers must still make fundamental adjustments to ensure safety before their employees return to the workplace. As an initial matter, employers should identify the individual (or group of individuals) responsible for ensuring workplace safety — a “Chief COVID Officer” or similar individuals with sufficient training, management responsibility, and visibility — to oversee the return to the physical workplace. That individual must be fluent in applicable CDC and OSHA guidelines and applicable state and local public health regulations, as well as the substance and duration of any shelter-in-place regulations. These safety regulations, which are updated frequently in response to medical, legal and other developments, will identify the steps employers will be obligated to take at their facilities, such as updating cleaning protocols, deploying necessary safety equipment such as masks, the use and application of disinfectants, and ensuring sufficient hand sanitizer stations. Because employers are obligated to provide necessary safety equipment to their workforce, they should begin sourcing suppliers now for any necessary personal protective equipment (including facial coverings) in anticipation of resuming physical workplace operations.
Diagnostic, Serology and Medical Testing
Diagnostic testing (for active COVID-19 infections) and serology testing (for antibodies to the virus) are a current focus of public health agencies and are undergoing rapid development and attempted deployment while a vaccine is in development. Government regulators are also focused on contact tracing, which will be an important part of reopening the economy. It is too soon to tell whether diagnostic or serological testing will be mandated for all or non-essential employers, in part due to the lack of plentiful, reliable and accessible tests. Whether or not testing is mandated, employers should expect the applicable regulatory agencies to issue additional guidance concerning the standards applicable to medical screenings for employee to determine active infections (such as, for example, the EEOC’s recent blessing of taking employee temperatures to detect infections and permitting COVID-19-related medical questions). However, absent governmental direction, an employer establishing diagnostic or serological testing as a bar to returning to the workplace may face discrimination claims. Most individuals currently lack access to diagnostic testing, and unlike diagnostic testing, existing scientific data has not proven the efficacy of serology testing.
At a minimum, employers should consider instituting some general screening of employees that might include taking employee temperatures and making inquiries into general COVID-related symptoms. In addition, employers must ensure that all employees receive and agree to abide by the CDC and OSHA requirements and any local regulations before being permitted to return to the physical workplace in the same way employees are asked to acknowledge and agree to any other employer policy.
Reformatting the Physical Workplace
Employers who previously embraced open workspaces such as carrel-farms might consider whether an open structure risks or enhances potential virus transmission (or, perhaps just as importantly, employees’ perception of such risks). Other layouts also pose challenges – employers will need to consider simple issues such as how to disinfect doors with handles and other “high-touch” surfaces. Enclosed spaces such as elevators, lunch and conference rooms and restrooms present other physical challenges to accommodating physical distancing. In addition, employers will need to consider policies regarding limitations for physical meetings, safety requirements for outside vendors and visitors, and possibly employing technology to track the number of individuals who are present (or are permitted to be present) in the workplace (subject of course to any applicable electronic monitoring disclosures). Employers should begin this thought process now – before the first employees are permitted to return to work. As a practical matter, adjusting office environments is far easier with an absent workforce, and may avoid further disruption upon their workforce’s return.
Extending Leaves of Absences and Staggered Staffing
Some employees may not be ready to return to the workplace because of illness. Others may face family care challenges (ill family members, absent caregivers, closed schools). Employers might consider modifying leave of absence policies to accommodate these specific (and other) situations in order to provide needed flexibility. The time to consider those modification is now – before decisions need to be made as events unfold. Developing consistent policies on an ad hoc basis is not only challenging, but also exposes employers to discrimination claims.
Addressing leave requests is not the only challenge employers should anticipate: if government regulators impose physical restrictions on the number of employees a physical workplace may accommodate or specific conditions (i.e., mandatory spacing of offices, removal of carrel farms), employers may have to stagger their workforce’s return (whether it is a return from a furlough or a return from teleworking). As with any other employment decision, selecting who may and who may not return, and the sequencing of that return, may implicate antidiscrimination laws. Those laws, which require employers to have a legitimate non-discriminatory basis for impactful employment decisions, require sensitivity to choices based on age and health. Similarly, employees on protected leave (such as FMLA and FFCRA) may have reinstatement rights that must be considered in conjunction with a return to work.
An Orderly Return
These are just a few of the initial issues employers should consider for an orderly return to the physical workplace, and each of these and others merit further examination. Next in our Roadmap Series we will be posting about a framework for accommodating employees with physical and mental health and other issues due to pandemic-related fears, issues associated with business-related travel and public commutation, some of the more pressing liability issues facing employers, and implementing a communications and response plan. While unlike the hasty retreat most employers experienced at the pandemic’s onset, the return will hopefully be more gradual in nature and the Mintz employment section looks forward to providing cogent, business-focused advice that guides employers to return their workforce to what we expect to be a transformed workplace in a thoughtful and measured manner.