As states and cities start lifting shelter in place and stay at home orders related to COVID-19, employers should have a plan of action for their business. Whether you were an essential employer that remained open or you had to furlough workers and temporarily close your doors, you must acknowledge that the workplace will not be the same as it was pre-pandemic. What should you consider for your plan of action, and what preparations should be made next?
Employers may want to have a phased reopening/return of employees. Here are some areas employers should assess as we enter into the month of May, and the next stage of the pandemic in the United States.
First and foremost are safety and health considerations. Employers and employees remain concerned about COVID-19 in the workplace. Good infection-control practices are critical to keeping on-site workers safe as new COVID-19 outbreaks may come and go.
Employers must always be mindful of the General Duty Clause of the federal Occupational Safety and Health Act (OSHA). It requires employers to furnish each employee a workplace that is free from recognized hazards that are causing, or are likely to cause, death or serious physical harm. Although there is no specific OSHA regulation that addresses COVID-19, OSHA has issued Guidance on Preparing Workplaces for COVID-19. Furthermore, OSHA is issuing a series of industry-specific alerts such as this one for the construction workforce. The CDC has also published guidance for businesses to plan and respond to COVID-19.
Social distancing measures will continue. Individuals should keep 6 feet apart. Conference tools should be utilized over in-person meetings whenever possible. Additional physical distance options include adding more space between individual workstations, putting up partitions, adding signs with instructions such as where to stand and which way to walk (arrows showing a one-way direction to minimize contact with others), and staggering breaks and work shifts. Employers that utilized remote work in the last several weeks should realize the benefits of continuing to do so.
In places where social distancing measures are difficult to achieve, the CDC recommends, and several states and municipalities require the use of cloth face coverings or masks. In some cases, employers may be required to provide them. Even if not required, employers may consider bearing the costs of this in the workplace.
The EEOC has also noted that an employer can require an employee to wear protective gear (mask and gloves) and observe infection control procedures such as regular hand washing and social distancing. Employers should follow CDC and OSHA guidelines for protective gear.
Employers are similarly looking at screening employees for COVID-19 as they come into the workplace. The EEOC has said that employers may ask employees entering the workplace if they have COVID-19 or symptoms associated with COVID-19 (or require self-reporting). Click here for the latest CDC list of symptoms. Employers may also take employee temperatures. On April 23, 2020, the EEOC updated its COVID-19 Technical Assistance publication and confirmed that employers may administer COVID-19 tests as part of a screening process before employees enter the workplace during this pandemic without violating the Americans with Disabilities Act (ADA). It is not clear at this time about antibody testing.
An employer will want to contemplate several items before implementing a procedure for the business to conduct the screening of employees when they enter the workplace. For instance, you will want to give prior notice (if in California, follow CCPA requirements), the person conducting the employee screening should be trained and provided with appropriate equipment including PPE, and the information kept confidential. An employer will want to pay non-exempt employees for time spent waiting and being screened. It may be easier to use a third party, or require the employee to affirm their own self-assessment (an employee visits a website or downloads an app) during this pandemic.
Employees may have continued anxiety and stress for the foreseeable future. In addition to concerns about COVID-19, they may have personal worries such as a spouse out of work, children out of school, and elderly parents on their own. An employee may also have guilt for surviving a layoff when perhaps others lost their jobs at the workplace.
Continue to communicate frequently with your employees. Inform and train them about new and continuing measures for workplace safety during this pandemic. Let them know about the benefits available to them (Employee Assistance Program) and any enhancements that have been made (telemedicine). Show that you care and that you appreciate their efforts for the company's customers. Contemplate how certain company-wide events will need to be handled (no large-gathering company picnic in the near future).
Employee complaints and concerns should be taken seriously. If the individual is afraid to come to the workplace, ask them why. If they are worried about COVID-19, you can communicate the status of the company, additional COVID-19 safety measures you have taken, and your current expectations. Work with the individual and follow established procedures and applicable compliance requirements. Employers should work with employees and show flexibility where they can. If an employee requests an accommodation, follow applicable ADA guidelines, and engage in the interactive process to determine what you may need to do. Prepare managers and supervisors as they are on the front lines responding to employee questions and concerns.
Employers should be up to date with any local, state and federal legislation as it applies to them, and understand various interplay with company policies and procedures; for instance, new expanded state sick leave, FFCRA. Reopening your business after closure can give rise to leave requests under the FFCRA for employees who were previously ineligible due to lack of work.
Generally, returning employees that remained employed do not need to be rehired in the traditional sense. You can just enter the return to work date as a personnel action, and if there are any significant changes to pay or benefits when the employee returns, you should communicate that in writing. A terminated employee who is rehired should follow normal applicant procedures (if they recently left, you could skip the rounds of formal interviews). The individual should sign a new handbook acknowledgment and complete other new hire paperwork. You could complete a new Form I-9, or fill out Section 3 of the employee’s original I-9 and attach a new I-9 form to it if the new Form I-9 is an updated version from the original form.
Employers should have developed a recent plan for the COVID-19 business disruption. How has your plan for business continuity during this time worked so far? How did you handle increased absenteeism and service to customers? How did you handle any needed furloughs or layoffs? What has worked well the last several weeks, and what should you tweak? Conduct a postmortem on how your plan has worked to date. Document the reasons for your decisions as well as lessons learned. Make updates to be as prepared as you can for next steps in this crisis.
We have seen programs passed with the goal of providing assistance to American workers, families, and small businesses. On April 24th, President Trump signed the fourth COVID-19 stimulus bill, the Paycheck Protection Program, and Health Care Enhancement Act into law. Additional legislation and initiatives related to COVID-19 are expected.
Employers have been faced with complicated choices when trying to determine the best path forward for their businesses. Employers should continue to monitor for new guidance and requirements with this ongoing extraordinary situation. The organizations that will come out stronger after this crisis will be the ones that take the time to prepare as best they can.