Many U.S. employers are eager to reopen their worksites and to resume more normal in-person operations. But resumption of business while the country continues to face the risk of COVID-19 infections presents significant legal and practical challenges. The nature of these challenges will differ based on the employer’s geography and industry. This article describes key labor and employment considerations for U.S. employers in planning and executing a reopening strategy.
When can businesses reopen their worksites? Businesses deemed “essential” or “critical” under state or local stay-home orders may already have in-person operations. For businesses that are not deemed essential or critical, reopening will likely occur gradually in phases, at a pace that differs by state, region and industry. For instance, the White House and U.S. Centers for Disease Control and Prevention (CDC) proposed such a phased reopening approach in their recent Opening Up America Again guidelines (the Federal Reopening Guidelines). The Federal Reopening Guidelines call on state and local officials to lift their restrictions gradually, in three phases. The restrictions are lifted in connection with sustained decreases in indicators such as COVID-19 symptoms and documented cases, as well as health care and testing of healthcare workers. The Federal Reopening Guidelines also call for improved overall testing, contact tracing, and improved healthcare capacity, among other things.
To be clear, the Federal Reopening Guidelines are guidelines – not requirements. At this time, many states and localities have announced or begun to execute phased approaches similar to the Federal Reopening Guidelines, and some states have created multistate working groups to plan for reopening together. For example, the state of Georgia reopened certain businesses on April 24, 2020, but such reopened businesses must “implement measures which mitigate the exposure and spread of COVID-19,” including social distancing, screening employees for symptoms of illness, requiring ill employees to stay home, improving workplace sanitation and hygiene, providing “personal protective equipment as available and appropriate to the function and location of the worker within the business location,” and similar actions. Colorado is permitting retail and personal services to reopen on May 1, and non-critical offices to reopen on May 4, so long as they can implement best practices identified by Colorado. Some states have taken or plan to take similar measures in the near future, whereas some states such as New York are less likely to begin reopening soon but have outlined plans for doing so.
If permitted to re-open, how quickly should a business ramp up its in-person operations? Employers should exercise caution in ramping up in-person operations. The Federal Reopening Guidelines state that initially, employers should encourage telework “whenever possible and feasible with business operations” and also return employees to work in phases if possible. In other words, the fact that reopening has become lawful does not mean an employer should do so all at once.
Due to phased reopening and/or overall reduced consumer demand, employers that have placed employees on furlough or temporary layoff status may decide to recall workers in stages. In conducting a partial recall, employers should avoid creating any impression that discriminatory criteria (e.g., age) are being used to select employees for recall.
Employers planning a partial recall might consider whether to implement a “short-time compensation” (also known as work share) plan in order to call back a broader group of workers on a limited hours and pay basis. Under such a plan, which is governed by both state and federal law, employee hours are reduced (generally between 10 percent and 60 percent from regular levels), but employees receive a pro rata portion of state unemployment pay. In many jurisdictions, the federal government may contribute an additional US$600 per week in benefits for each worker until July 31, 2020 through the CARES Act.
Employers should consider how the timing of reopening may impact federal WARN Act requirements and similar requirements under state law. Generally speaking, continuing temporary layoffs, furloughs, or reductions of hours in excess of 50 percent for longer than six months constitutes an “employment loss” under the federal WARN Act, which could trigger notice and other obligations.
How do businesses address safety at the worksite when reopening? Paramount to a successful reopening is a safety strategy that is legally-complaint and practical.
At minimum, an employer must strive to ensure that it complies with federal, state, and local workplace requirements and observes applicable guidance. Requirements and guidance are rapidly changing, so employers must check for updates regularly, including the following:
- State and local executive orders and ordinances.
- Requirements and guidance from CDC, the Occupational Safety and Health Administration (OSHA), and state and local health officials, including industry-specific guidance issued by CDC and OSHA (see OSHA’s collection of industry specific guidance here).
- The standard of care being observed in the relevant industry.
Applicable federal, state, and local laws and guidance may differ, and employers should develop a strategy for dealing with differing requirements and guidance, such as following the most restrictive guidance across all workplaces, or complying with requirements and guidance that are applicable to particular workplaces on a workplace-by-workplace basis.
Employers need to determine and implement appropriate safety protocols. For example, in the early stages of reopening, some of the protocols to consider include:
- Potential screening of employees and third parties before they enter the worksite (see further details on this below).
- Instructing employees to stay home (or go home) if they develop symptoms.
- Social distancing requirements, including minimizing group meetings and use of common areas, as well as creative solutions such as staggered shifts, staggered meal time or breaks, or flexible hours (employers should consider wage and hour laws in making changes to breaks or hours, particularly in jurisdictions such as California).
- Providing or permitting employees to wear face coverings (required by law in some jurisdictions).
- Erecting physical barriers (such as plexiglass), repositioning workstations to limit contact, or closing common areas.
- Prohibiting or discouraging sharing of tools and equipment.
- Having flexible leave policies in place, both to comply with law (including the Families First Coronavirus Response Act (FFCRA) when applicable) and to discourage employees from coming to work sick.
- Ensuring good hygiene and respiratory etiquette in the workplace, such as hand washing, hand sanitizer, tissues, and time to take breaks to wash hands.
- Conducting regular cleaning with EPA-approved cleaning chemicals.
- Minimizing business travel.
Employers should determine now whether they have sufficient supplies (e.g., face coverings, personal protective equipment (PPE), soap and hand sanitizer, tissues) and service providers to implement screenings, or if not, where they will obtain such supplies and service providers.
In addition to the above, some types of employers are subject to and need to follow additional safety measures, such as industry-specific guidance from CDC and OSHA. Such industry specific guidance has been issued for industries such as: healthcare, emergency response, meat and poultry processing, laboratories, correctional facilities, and airlines.
What about employee and supervisor training? Employers should plan to communicate clear safety rules to employees and provide appropriate training. OSHA requires training for employees who use PPE. In addition, employees who are performing medical screenings such as temperature checks, cleaning, or similar activities should be trained on how to perform these actions safely and effectively. Employers should also have clear procedures, including necessary training for managers, on handling COVID-19 issues, such as how to address the appearance of potential symptoms during the workday or infractions of social distancing or other rules, with employees.
What if employees in the workplace are infected or have been exposed to infected individuals? Employers must be prepared to respond to potential infections, exposures, or similar events in the workplace, for example, by:
- Sending infected or symptomatic employees home, and determining whether to send exposed employees home. The CDC clearly advises sending infected or symptomatic employees home, and originally stated that exposed workers should self-quarantine even if they do not have symptoms, but more recently stated that exposed “critical infrastructure” employees may continue to work if they do not have symptoms and the employer and employee follow certain precautions. As noted in our blog post, whether to send an exposed critical infrastructure employee home requires a number of legal and practical considerations.
- Identifying employees and third parties with whom an infected or symptomatic employee was in prolonged close contact. In some cases, it may be prudent to also identify individuals with whom an exposed employee was in prolonged close contact.
○ CDC has issued guidance on the meaning of “prolonged close contact” in the healthcare and non-healthcare contexts. Generally speaking, CDC says close contact means within 6 feet.
- Without revealing the identity of the infected or symptomatic employee, informing those who may have been in prolonged close contact of their potential exposure; consider also informing the rest of the workplace, the landlord, state and local health officials, and others.
- Cleaning the workspace or entire facility after a recent confirmed or likely infected employee in the workplace (for most non-healthcare facilities, the CDC recommends closing off the relevant area and waiting at least 24 hours before cleaning), and deciding whether to shut down some or all of the facility (a decision that should ideally be made with state and local health officials).
Should employers screen employees for COVID-19, and if so, how? Employers should consider potential methods of screening employees who will be working onsite for COVID-19 infections, symptoms or exposures, while recognizing that no currently available screening methods are completely effective. According to EEOC guidance, during the pandemic it is permissible to (1) ask employees who will be working onsite if they have been diagnosed with, are experiencing symptoms of, or have been exposed to someone with COVID-19; (2) measure the body temperature of an employee who will be working onsite; and/or (3) administer a COVID-19 test to employees who will be working onsite.
In determining a screening protocol, employers should consider:
- Is a particular type of screening required in the jurisdiction where the employer operates? For example, some localities in Texas specifically require temperature scans.
- If conducting temperature checks, consider practical issues, such as where the tests will be conducted (is it practical to perform them before employees enter the workplace?) the accuracy of the tests, how frequently tests will be conducted, who will perform the tests how will that individual be kept safe, how will confidentiality of test results be maintained and whether non-exempt employees must be paid for the time spent taking the test.
- If conducting COVID-19 tests, consider the same issues as temperature checks, as well as the other practical issues identified in our prior blog post.
- Will the employer require employees to answer basic questions before entering the worksite, such as whether they have been diagnosed with, are experiencing symptoms of, or have been exposed to someone with COVID-19? If so, it is important to consider, among other things, how employees will be asked to answer these questions (in writing or orally), and how responses will be maintained confidentially.
- Note that the CDC has issued specific screening and monitoring guidance and safety protocols for critical infrastructure workers who continue to work after an exposure of COVID-19, including daily temperature checks.
Employers must be nimble in adjusting screening procedures to evolving facts and law. The legal justification for using some of the above screening techniques is that COVID-19 presently poses a “direct threat” to the workplace due to its spread. As COVID-19 cases diminish and other developments reduce the risk of infection, the EEOC may no longer deem COVID-19 a direct threat.
Employers must be careful to consistently apply the same screening procedures to similarly situated individuals to avoid discrimination claims.
What if employees refuse to return to work? Some employees may be reluctant to return to in-person work. Whether an employer must accede to an employee’s request to remain home depends on the reason for the reluctance. If the employee has a generalized fear of COVID-19, the employer most likely need not agree to allow the employee to remain home but may consider extending telework privileges or unpaid leave where feasible, as long as similarly situated employees are given the same options. On the other hand, if an employee has a preexisting condition that constitutes a disability under the ADA, the employer may have a duty to discuss potential accommodations for that employee, which could include remote work or leave. Employers should consider granting such accommodations on a temporary basis, to be revisited at a later date. Employees may also have rights to protected leave under the FFCRA, the Family and Medical Leave Act (FMLA), or a state or local paid leave law. (Also see the discussion below regarding vulnerable populations.)
Employees may have other concerns about returning to work. For example, an employee who lives with a family member who is older, immunocompromised, or has another condition making the family member particularly vulnerable to complications from COVID-19 may be concerned about bringing the virus home. Employees who rely on public transit to get to work may be concerned about risk of exposure on buses or subways. Employees also may have concerns about the adequacy of the employer’s safety protocols, about co-workers’ compliance with safety guidelines, or about the conduct of other tenants in a shared building. There are no one-size-fits-all solutions, and employers should address these and other COVID-19 concerns with sensitivity. Employers can help to mitigate unfounded fears by sharing the latest guidance from the CDC and OSHA with employees, and may want to consider extending telework or leave privileges or providing transportation benefits (parking or car services) to employees where feasible for some period of time. Above all, employers should be consistent in offering accommodations and should pay attention to employees’ safety concerns, bearing in mind that retaliation against workers who report unsafe or unhealthful working conditions may be considered retaliatory.
What if employees refuse to be screened? Generally speaking, if an employee refuses to undertake the employer’s legitimate standard screening procedures, the employer can refuse to allow the employee to enter the worksite. But if an employee is seeking an accommodation from screening on the basis of religion or disability (such as relief from standing while waiting for screening, or an exemption from a blood test), the employer may need to discuss with the employee whether a reasonable accommodation can be found. Additionally, employees who complain on a group basis about screening may be considered to have engaged in protected, concerted activity under the National Labor Relations Act (NLRA), which could increase the risk of a retaliation claim if the employer treats employees engaging in such activity adversely and differently from others.
What about serological (antibody) tests? Serological tests (sometimes referred to as “antibody tests”) detect antibodies present in the blood due to the body responding to a specific infection. The accuracy of such tests is currently uncertain, as is the science of immunity from COVID-19, and the EEOC has not yet stated that employers can perform serological tests on employees, as opposed to tests to show if an employee currently has COVID-19, which are permissible.
What about “vulnerable populations”? The CDC has advised that certain individuals—including people 65 or older, and those with underlying medical conditions such as asthma, lung disease, or severe obesity—are at higher risk from suffering serious illness from COVID-19. Likewise, the Federal Reopening Guidelines urge such “vulnerable individuals” to shelter in place until “Phase III”, which could be an extended time period.
Employers should not require vulnerable individuals to self-identify as being in the vulnerable category, and should exercise caution before proactively asking, encouraging, or requiring employees who fall within the vulnerable population categories to stay home or accept “lower-risk” work. Such actions risk claims of age or disability discrimination. A safer approach is to inform the entire workforce about the CDC guidance regarding vulnerable individuals and encourage vulnerable employees to request any needed accommodations.
What about union issues? Employers with unionized workforces may have a duty to bargain, or be asked to bargain, regarding reopening topics, such as which workers will be recalled first, safety measures, and “hazard” pay. Whether a duty to bargain exists will depend on the collective bargaining agreement, among other factors.
Employers may also face organizing efforts by unions targeting employees experiencing fear and uncertainty from the COVID-19 pandemic. Notably, mid-sized employers who received loans under the CARES Act are required to “remain neutral in any union organizing effort for the term of the loan” and must not abrogate existing collective bargaining agreements for the term of the loan and two years after repayment.
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The legal and factual issues relating to reopening workplaces continue to rapidly evolve. All employers need to stay current on the laws and guidance applicable to their own workplaces on this issue, and should regularly check on federal, state, and local developments. For more information regarding reopening workplaces in light of COVID-19, or other employment law issues, please contact an author of this article or the Hogan Lovells lawyer with whom you work.