Most states are planning to reopen (or already have reopened) public spaces and workplaces that were restricted due to social distancing guidelines put in place to mitigate the spread of Covid-19. Meanwhile, many companies are extending their work-from-home policies where it makes sense. The White House and the U.S. Centers for Disease Control (CDC) released new guidelines to help facilitate these transitions in a safe and responsible manner.
Employers should realize that reopening their physical workplace may be controversial, since most states have not met the criteria for initiating a phased reopening, which generally consist of:
- A downward trajectory of flu-like illnesses and covid-like cases within a 14-day period;
- A downward trajectory of documented Covid-19 cases and positive tests as a percentage of total tests for 14 days; and
- A robust testing program in place of all at-risk health care workers, including antibody testing.
Since federal guidelines are not binding, nor has the federal government issued a stay-at-home order, decisions that would allow employers to reopen workplaces are being made at the state and local levels. Your company’s managers and other people leaders will need to be particularly astute before reopening in order to adequately protect workers and other stakeholders, while minimizing legal exposure.
We’ll discuss the main legal issues you need to consider for your company’s return-to-work plan, such as bringing back furloughed employees, taking necessary health precautions, and maintaining safe physical distance in the workplace.
What are the legal consequences of reopening early, if there is still a shelter-in-place order where I operate?
You may have seen in the news recently that local officials allowed electric automaker, Tesla, to re-open its Fremont, CA plant in defiance of the local shelter-in-place mandate. Since Tesla has a market value of $150 billion and employs 11,000 people at its Fremont plant, it has a lot of clout and was able to force the county’s hand by threatening to relocate its facility.
Your small business most likely doesn’t have that kind of leverage. For the vast majority of businesses, defying a county or state order carries substantial punitive and legal risks, including:
- County/state fines
- Revocation of your business license
- Interruption of utility services (such as electricity)
- Arrest for violation of an emergency order
- Negligence lawsuits by workers exposed to Covid-19
If you are considering defying state or local mandates, you should consult an attorney to fully understand the legal risks that you may be undertaking. In addition, your attorney should prepare a memo to be able to argue that you are acting legitimately, which should be provided to any authority. Lastly, you should have counsel on retainer in the event that the police do appear at your site, as you would not want to make any admissions, rather remain silent, and enable your lawyer to attempt to properly defend your action.
What are some of the most important things to remember when bringing furloughed employees back to the workplace?
If you furloughed any of your employees due to a stay-at-home order, then they most likely anticipate a return to work once state or county officials give the green light for your type of business to reopen. Alternatively, you may have set a specific date or some other condition (such as an uptick in business) that must be met prior to their return.
Some furloughed employees may have found other work or otherwise don’t intend to return to your business. Perhaps they have additional family responsibilities or have relocated due to the COVID-19 crisis. In these cases, you may terminate the employee as if they have quit the job, including payment of any contractually guaranteed severance pay or other benefits.
In any event, you should typically provide a one- or two-week notice (or whatever is feasible) to furloughed employees prior to their return, including a date by which you require a response. This not only gives employees a fair heads-up, but will also help you determine which furloughed employees actually will return. The other thing to consider is that a furlough lasting more than 30 days may trigger an obligation to provide a 60-day notice of layoff pursuant to the California Cal-Warn Act.
What if a furloughed employee declines my invitation back to the workplace?
One or more of your furloughed employees might prefer to stay unemployed and collect unemployment insurance (UI) benefits. However, if they decline an invitation to return to work, then it would be considered a refusal of a bona fide offer of suitable work—which means they may be disqualified from UI benefits. Actual consequences of a refusal may vary, since UI benefits are administered at the state level.
What if I’m unable to bring furloughed employees back to the job for purely business reasons, even though a stay-at-home order has been lifted?
Since furloughed employees are still technically employed (although they’re not being paid), they may be laid off if you’re unable to bring them back. This will allow them to continue collecting unemployment benefits after you sever the employment relationship.
However, any layoffs you do will need to be conducted in a legally sound manner (following both state and federal laws). This includes avoiding disparate impact discrimination and providing advance notice if it’s a largescale reduction in force.
If you are uncertain about how to manage a layoff, a business or an employment lawyer can help.
As an employer, what are my paid leave responsibilities to employees under the Families First Coronavirus Response Act?
The Families First Coronavirus Response Act (FFCRA) requires covered employers to provide all employees with paid leave for certain reasons related to Covid-19. The effective date of this requirement was April 1. You’ll also need to conspicuously post or distribute the Dept. of Labor’s new FFCRA poster so your employees are fully informed of their rights.
All employees may qualify for up to two weeks (or 80 hours) of paid leave (through Dec. 31, 2020) if they are unable to work because:
- They are quarantined (pursuant to federal, state, or local government order, or advice of a health care provider) or experiencing Covid-19 symptoms and seeking a medical diagnosis—paid at their regular pay rate
- They have a bona fide need to care for an individual subject to quarantine or a child (under 18) whose school or care provider is closed or unavailable for reasons related to Covid-19—paid at two-thirds of their regular pay rate
Employees that you have employed for more than 30 days are eligible for up to 10 additional weeks of paid leave (at two-thirds of regular pay rate) to care for an individual subject to quarantine or a child whose school or care provider is closed.
A “covered employer” is a private employer with fewer than 500 employees within the United States or its territories. Certain businesses are exempt from this requirement, including critical parcel delivery services, businesses that already have generous leave policies, and businesses with under 50 employees for whom this would create a financial hardship.
States or cities may provide additional benefits that affect a wider range of employers. The City of Los Angeles, for example, mandates supplemental paid leave for employers with 500 or more employees in the city (or 2,000 or more nationally).
If you have questions about whether your business counts as a covered employer under the federal law, or you are unsure about any additional local guidelines, ask a lawyer.
How do I maintain the privacy of employees who have contracted (or may have been exposed to) Covid-19?
You may inquire about the health status of your employees, given how contagious Covid-19 is, but you also need to respect their medical privacy. Some aApplicable federal laws include the Americans with Disabilities Act (ADA) and the Health Insurance Portability and Accountability Act (HIPAA). However, you will also need to comply with any relevant state and local laws that provide a greater degree of privacy protection.
These laws generally restrict you from inquiring about employees’ medical history and specific medical conditions (or sharing that information with other parties). However, theThe following guidelines for pandemic preparedness in the workplace were provided by The U.S. Equal Employment Opportunity Commission (EEOC) to address the most common medical privacy concerns:
- You may send employees home if they have “flu-like symptoms” (i.e. fever or chills AND cough or sore throat)
- Limit inquiries to the extent practical and keep medical information confidential
- Comply with EEOC, CDC, and HIPAA guidelines for employee medical information
- If an employee tests positive for Covid-19, notify the CDC and other employees (while maintaining that employee’s confidentiality)
What can I do to protect my employees in the workplace, in terms of personal protective equipment (PPE), face masks, and other preventative measures?
Since the virus that causes Covid-19 maycan be spread in a roughly six-foot radius through tiny droplets released from the mouth and nose (and even further if spread through a sneeze), PPE including face masks is recommended by the CDC. Since individuals also may contract the virus through contaminated surfaces, you’ll want to ensure access to handwashing stations and sanitizer, as well as more frequent cleaning and disinfecting of frequently touched surfaces such as copiers, fax and other office equipment.
Simply providing protective gear and access to sinks for handwashing isn’t enough, though. You’ll need to implement a company-wide policy to ensure compliance—refer to Covid-19 workplace preparation guidance provided by the Occupational Safety and Health Administration (OSHA) for more details.
OSHA guidance includes (but is not limited to) the following:
- Promote frequent handwashing and make sure that quotas or time constraints don’t interfere with this important guidance (make sure visitors and customers, if applicable, also have access to handwashing and/or sanitizing).
- Encourage workers to stay home if they feel sick, without fear of adverse action.
- Discourage use of other employees’ phones, computers, desks, or other personal items.
- Practice routine cleaning and disinfecting of surfaces.
- Mandate the use of clean face masks or other acceptable facial coverings, gloves, and/or face shields where necessary.
If an employee provides their own PPE in the absence of employer-provided gear (in the event of a shortage, for example), you must reimburse them for the reasonable cost.
What are the best practices for ensuring that previously sick or exposed employees are healthy enough to return to work?
You may refer to the EEOC’s guidance for pandemic preparedness, which states that an employer may enact certain requirements for when an infected or potentially exposed employee may return to work.
As an employer, you may legally:
- Ask an employee to provide proof of their health by requiring them to submit to a medical exam.
- Provide a physician’s note stating the employee is fit to return to work.
- Demand the employee indicate they have been free of symptoms for a specific time period.
- Demand temperature checks.
In order to prevent their return to the workplace, you must be able to provide objective evidence that their condition would prevent them from adequately performing their job duties or that it poses a direct threat to others in the workplace.
What are the best ways to screen employees for signs of Covid-19?
Under the guidance of the EEOC, you may ask your employees to be tested for Covid-19 before they’re allowed back onto the worksite, assuming you’re reopening after having closed shop. However, keep in mind that employers can’t single out a “class” of employees for such testing; so you’ll need to apply any such testing procedures equally.
You also have the right to inquire as to whether an employee:
- Has been exposed to someone with a positive diagnosis of the novel coronavirus
- Is living with someone who is experiencing symptoms of Covid-19
- Has received a diagnosis or has any Covid-19 or flu-like symptoms
Additionally, you may choose to implement screening procedures that include taking employees’ temperature prior to their entry. A temperature of 100.4 degrees (F) or higher may be a sign of Covid-19 infection. If you keep a record of these readings, however, they must be kept confidential.
Any testing or screening of employees must be compensated (i.e., no off-the-clock testing or screening).
How do I maintain safe social distancing in the workplace?
Social distancing guidelines provided by the CDC suggest the importance of maintaining a distance of at least six feet from other individuals and avoiding large gatherings, which presents a challenge for many workplaces. If your current workplace configuration doesn’t provide this much social distance, then you may want to have staggered shifts (e.g., portions of the staff come into the office at different times) or provide more work from home options where it makes sense.
Other suggestions include:
- Reassigning vulnerable workers (such as older workers or those with compromised immune systems) to tasks where they have less contact with others
- Ensuring that customers, vendors, partners, and other third parties also comply with social distancing guidelines (for instance, use tape or other visual cues to illustrate how far people should stand apart from one another while waiting in line)
- Implement partitions and physical barriers to help maintain safe distances
- Prohibit hand shaking or any other forms of direct human contact
- Use remote services, such as video meetings, whenever possible, even when in the same office, rather than gather in a conference room
- Make sure your facilities have adequate ventilation and improve where you can, such as opening windows or purchasing air purifiers/washers
As an employer, your decisions about returning to work can have serious implications for the health of your workforce and for your business. It is important to talk to a lawyer to understand your obligations in relation to your local shelter-in-place mandate, workplace safety, and employee leave policies, in order to avoid disputes or other consequences. If you have questions, visit Rocket Lawyer’s Covid-19 Legal Center and ask a lawyer for free, or use any of the free legal documents offered to help you manage your business.
This artcle originally appeared in Rocket Lawyer: https://www.rocketlawyer.com/blog/returning-to-work-post-covid-what-employers-should-know-927048