In response, Klehr Harrison provides this guide to assist employers with developing plans to reopen their office doors. This guide highlights the key steps and best practices for employers to consider prior to reopening. This guide is just the first step in re-opening guidance, as we will be drilling down on the issues addressed here in greater detail in the coming days and weeks.
Like all COVID-19 guidance, employers should continue to monitor the developments from federal, state, and local officials, and consult with counsel for specific guidance regarding the particulars of their businesses. For more detailed guidance concerning your specific industry please access Klehr Harrison’s Coronavirus (COVID-19) Taskforce Resource Center.
Download our companion Return to Work Checklist.
Review Applicable Government Orders and Guidance
On April 16, 2020, the White House Coronavirus Taskforce announced its guidelines for reopening the U.S. economy. Some state governors also began announcing plans to relax their “stay-at-home” orders based on factors such as location, sector, business type or size, or the health status of workers. Therefore, before determining how to return employees to the workplace, employers must review the status of reopening plans in each state where the employer operates.
In addition, employers should review guidance from government agencies such as the CDC, OSHA, and EEOC. These agencies provide employers with information on how best to ensure the safety of employees, customers, and clients.
Revise Employee Policies
Some state and local governments indicated that their reopening orders may require businesses to develop written policies concerning workplace issues related to COVID-19. Employers should consider the following when updating or implementing new employee policies:
- Develop or update social distancing plans. Review any state and local orders regarding social distancing in the workplace as requirements may vary by region and industry.
- Update current employee policies. Consider revising or memorializing instructions concerning requesting leave under the Families First Coronavirus Response Act (FFCRA), employee screening protocols, or rules for nonessential travel and social distancing. Further details on the FFCRA can be found in our news alerts, DOL Issues Additional Guidance on Paid Sick and Family Leave Requirements and DOL Issues Regulations for New Federal Paid Sick and Family Leave Law.
- Implement new policies for COVID-19 issues. Consider implementing policies for any new issues your workplace could face. Such issues may include furloughs, working from home, benefit plans, compensation plans, and pandemic response policies. Additional information concerning furloughs is discussed in our article, Considerations Regarding Furloughing Employees.
- Develop protocols for bringing employees back into the workplace. Prior to reopening, consider whether to bring back employees on reduced hours, implement shifts, or allow telework options. Employers should communicate these changes to their employees prior to having employees return to the workplace.
- Non-Discriminatory Application. As with all policies and procedures, employers should ensure that any new policies are implemented in a fair and non-discriminatory manner. Employers should consider having one individual or group be responsible for all communications and requests related to these policies.
Prepare the Physical Workplace for Reopening
Federal agencies have issued guidelines for employers that can assist with determining how to reopen their workplaces to protect the health of their employees. OSHA issued advisory guidance on preventing exposure to and preparing the workplace for COVID-19. In addition, employers may consult the CDC’s recommendations for maintaining a healthy work environment. These measures include:
- Risk Assessment. As outlined in the OSHA Guidance, employers should categorize the COVID-19 exposure risk level of employees at each worksite and take appropriate steps to protect employees based on their exposure risk level. The OSHA guidance also sets forth minimum standards for protecting employees based on various exposure risk levels.
- Social Distancing Measures in the Workplace. Employers may encourage social distancing practices through the following suggested measures:
- Limit the number of employees allowed in certain spaces at the same time (e.g., breakrooms, check-in area/time clocks, and elevators).
- Discontinue or limit certain services (e.g., vending machine services, food trucks, meal delivery, dry cleaning pick up, workout instructions).
- Ensure the reception area for visitors allows for adequate social distancing.
- Implement flexible worksites as employees return (e.g., telework).
- Implement flexible work hours to decrease the number of employees present at one time (e.g., staggered shifts).
- Increase the physical space between employees in work and non-work spaces.
- Increase physical space between employees and customers.
- Implement flexible meeting and travel options.
- Deliver services remotely (e.g, video, phone, or online).
- Deliver products through curbside pick-up or no-contact delivery.
- Workplace Hygiene. Employers should consider introducing measures to keep the workplace clean to protect the health and safety of employees and customers. Such measures may include:
- Sanitize the physical workplace in accordance with CDC guidelines.
- Provide employees and third parties with sufficient cleaning/sanitizing supplies for their workspaces.
- Determine if state and local orders require employees to wear face masks/covering in the workplace or when dealing with the public. If so, employers are required to provide employees with these coverings.
- Training employees on social distancing protocols. Employers should consider providing employees with training on the new social distancing protocols including who to contact with questions or concerns. Management and individuals designated as contacts for any policies may require additional training on their new roles.
Monitor the Health of Employees and Third Parties
The EEOC issued guidance for employers concerning the monitoring and screening of employees for COVID-19. As employees reenter the workplace, employers may want to consider implementing monitoring and screening measures to ensure the health and safety of their employees. When developing these protocols, employees should consider the following:
- Implement testing for COVID-19. The EEOC advised that employers may administer COVID-19 testing to employees before they are permitted to enter the workplace, such as temperature screening and soliciting health information from employees.
- The EEOC confirmed that employees do not violate the ADA by requiring employees to undergo medical examinations, such as temperature checks, or asking employees disability-related questions. Acceptable questions include whether the employee suffers from underlying health conditions that place may make COVID-19 more severe for them.
- Prior to implementing testing protocols, employers should ensure the tests are accurate and reliable by referencing guidance from the FDA, CDC, and other public health authorities.
- High-Risk Employees. The CDC issued guidance concerning those who are at higher risk for severe illness from COVID-19. When determining whether to grant accommodations for high-risk employees, employers should be mindful of the requirements and prohibitions contained in the ADA.
- Exclusion from the Workplace. Currently, employers may exclude individuals with COVID-19, or those exhibiting its symptoms (CDC guidance), from the workplace for health and safety reasons. Employers may also require any employees experiencing COVID-19 symptoms to leave work, seek testing, and report the results. Employees who refuse to answer health questions or submit to medical examinations may be barred from the physical workplace.
- Confidentiality. Employers are required to keep all of their employees’ medical information confidential, including information related to symptoms of COVID-19 or a diagnosis of COVID-19, such as test results, temperature screening logs, and other medical information solicited from employees.
A more in-depth discussion on the EEOC’s guidelines can be found in our news alert, The EEOC Issued Additional Guidance for Employers Related to the Federal Equal Employment Opportunity Laws and the Covid-19 Pandemic.
Continuing Business Functions
As businesses begin to restart their operations, employers should consider the following:
- Evaluate and/or renegotiate new or existing contracts with vendors.
- Monitor agreements with vendors and be prepared for delays or unavailability of services.
- Review insurance policies to ensure coverage for various COVID-19 implications. For additional assistance concerning insurance coverage for losses experienced during the COVID-19 pandemic visit Klehr Harrison’s Insurance Recovery Focus Group.
- Apply for any federal, state, or local funding available for your business. Further information and assistance with navigating the numerous loan programs is available through Klehr Harrison’s SBA Small Business Focus Group.
The Coronavirus Task Force at Klehr Harrison stands ready to assist you in your business and legal needs. We will continue to provide additional information and guidance as the COVID-19 situation develops.
Author Jonathan Krause is chair of the Litigation Department at Klehr Harrison.