Issues Employers Must Consider Before Reopening In This Pandemic
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As America begins the process of trying to reopen, employers must start planning the return to more normal operations. Below are some of the most important tips and considerations for planning to re-open your business while the pandemic continues.
Of course, your biggest concern for reopening is maintaining the health and safety of your managers, your employees and your customers/clients. Many of the governmental orders permitting a reopening of workplaces include restrictions to help avoid transmission of COVID-19 when businesses reopen. Now is the time to start by looking at these general guidelines, as well as those from public health agencies, such as the CDC Determine protocols for cleaning and disinfecting, and ensure they are compliant with any applicable requirements. Also, if your business operates inside of a shopping mall or office building, find out what the protocol will be at these locations.
Determine whether PPE is required or recommended for your business and, if so, what is available. Do not wait until the last minute to order such supplies as many stores are sold out of the items you most need. Determine whether PPE is required for visitors and/or whether your business can make PPE available.
Social distancing is still extremely important and you must review your workplace to ensure individuals can maintain adequate social distancing throughout the day. Consider whether signage, floor markings, or other precautions should be added. Do you have a small break room that has to be closed, or at least limited to one person at a time brewing a k-cup?
Consider whether to make common areas open and available, and how they will be maintained and disinfected throughout the day. In congested areas where social distancing is not possible throughout the work day, limit which employees can access an area and place barriers/dividers to separate co-workers from each other and/or customers/visitors. Determine whether employees can or should be returned to work on rotating schedules to ensure social distancing. If so, make sure there is equity and no favoritism in such assignments so that you won’t get hit with discrimination claims.
Display posters and reminders about frequent handwashing and encourage employees to engage in such behavior. Provide adequate supplies including hand sanitizer at convenient locations. There are unique requirements and/or guidance for many industries, from retail and hospitality to healthcare and construction. Confirm whether industry-specific rules exist for your workforce at the state, local or federal level, and look into any best practices specific to your industry.
Determine whether your business should (or must) engage in any health screenings when returning employees to work. Legal issues need to be considered (for instance privacy rights, local requirements, etc.) and employers need to establish clear rules for the scope of any screening, frequency, and reporting obligations.
Temperature taking will become a fact of life. Consider how to take employees’ temperatures and who will do it. Training is likely needed regarding how, where, and with what equipment. Develop a plan for training your employees to ensure they are aware of the health and safety protocols and other rules and restrictions that are applicable to them and to customers/clients. Consider the best strategy for conducting relevant and timely trainings. Micro-trainings are a good option here.
Make a plan for what you will do with any health information gathered. Remember to consider any local requirements that may specify documentation to be developed or maintained (i.e., health screening logs).
If your business laid off portions of its workforce, you may not be able to nor want to hire all of your employees back immediately. Or, if your employees were furloughed, your business may only return employees to the workforce in smaller groups. You need to be very careful when deciding whom to bring back first. First figure out what your business needs are and then determine a non-discriminatory strategy for making rehiring decisions. We would be happy to work with you to finalize your plan and document your plan and your decisions. Establish a plan for what to do if any employee turns down the opportunity to return to work. This is especially important if your business has taken out a PPP loan and hopes to have the PPP loan forgiven. The employee rejection of re-employment in these circumstances must be put in writing.
Dealing with vulnerable populations is going to be one of your biggest challenges. Consider how best to legally protect populations particularly vulnerable to COVID-19. Excluding them from rehire is fraught with peril, as is forcing them to return to work. If it is possible to allow the employee to continue working from home, offer this option. Consider if you want to require medical certifications before allowing anyone in the vulnerable population (in Georgia this is includes everyone over age 65 as well as those employees with medical conditions that make them more vulnerable to exposure) to return to work. Also consider making any employee in this group who rejects an offer to continue working at home to put that fact in writing before allowing them to return to work.
Also, dealing with employees that you ask to return to work but who have ongoing childcare issues due to schools and daycares being closed will require you to understand the leave requirements under the FFCRA, specifics for which we have provided in prior E-Lerts. Determine requirements, preferences, and protocols for responding to leave/remote work requests to care for children who remain at home due to school closure or lack of child care availability. Intermittent leave should be considered in these circumstances
Consider the paperwork necessary to document the return to work. This will depend on whether you are rehiring employees or ending a furlough. There may be opportunity to update contracts or a need for new offer letters if the terms of employment have changed.
The interplay of CARES, PPP Loans, and unemployment benefits is complicated. Be sure you understand how these all interrelate and communicate compassionately and clearly with employees. Employees will want to know what happens to their unemployment if the employee is only partially reinstated. Because unemployment benefits can be specific to an individual’s circumstances and state law, be very careful in making any statements to employees on this subject. You need to draw the line between being helpful and making promises or representations about matters you do not control.
You should examine all of the employee benefit plans that you offer employees to see whether the benefit programs were impacted by the length of time an employee was away from work? Is there a difference in benefits for employees that were laid off vs. furloughed? Investigate whether waiting periods might be imposed. Determine whether any sick leave the employee earned prior to layoff must be reinstated. Determine whether and how the FFCRA will apply going forward, including the need for potential policy revisions.
Positive Tests: Establish a protocol for responding to a positive COVID-19 test result or an employee showing/reporting symptoms, including but not limited to workplace contact tracing, required reporting to government entities, disclosure to coworkers and other third parties, return to work requirements, etc.
Refusal to Perform Legitimate Assignments: Be prepared to respond to employee refusals to perform legitimate assignments that may raise health or safety concerns.
Refusal to Return: Be prepared to respond to employee refusals to return to work or demands for indefinite teleworking arrangements due to fear of exposure. The response plan may differ for individuals who are not identified as vulnerable by the CDC or a medical provider.
Employee Raises Safety Concerns: Prepare to address group concerns with an eye toward protected activity and concerted activity rights.
Reduction in Pay: Consider whether any reductions implicate legal rights or restrictions, including those arising under applicable labor laws or a CBA.
PPE Accommodations: Prepare to address employee requests for accommodation relating to personal protective gear, including assessing available resources.
Discipline for Failure to Comply With Precautions: Consider establishing a baseline for discipline that will be imposed for employees who fail to comply with safety precautions. You should consider training employees and supervisors on disciplinary expectations as well as any applicable fines or criminal penalties associated with local orders and restrictions.
The plans and protocols for addressing these topics may differ for your business based on its location(s), industries, size, and workforce. Moreover, federal, state, and local guidance (and requirements) change frequently. You will be wise to develop a plan and then adjust as reopening nears and even after the business has re-opened. Written plans can serve as a resource for employees, reassurance to customers, and protection in the event of a health and safety audit. But remember, training employees on a written plan can be just as important as developing the plan itself. As always we are available to assist you in thinking through and putting into place all of these policies and procedures.
