Returning Employees to the Workplace During the COVID-19 Pandemic
As New York and other jurisdictions gradually permit businesses to reopen, employers should begin developing a strategy for how and when to return employees to the workplace. This strategy must be informed by federal, state, and local regulations and guidance, as well as unprecedented practical considerations aimed at preventing the further spread of COVID-19.
Federal Guidance: Many federal agencies have issued guidance for employers returning employees to the workplace during the COVID-19 pandemic. This guidance is evolving rapidly, and employers should frequently monitor updates from federal agencies to ensure they are following current requirements and best practices. For example, the EEOC recently updated guidance on complying with employment discrimination laws during the COVID-19 Pandemic, and revised its guidance on pandemic preparedness and the Americans with Disabilities Act to reflect COVID-19 specific scenarios. The EEOC’s guidance discusses, among other issues, the permissibility of requesting medical information and temperature screening of employees. The CDC recently issued guidance regarding steps that employers with office workers should take prior to resuming business operations. OSHA issued guidance on preparing workplaces for COVID-19 and the U.S. Immigration and Customs Enforcement has issued guidance regarding compliance with Form I-9 requirements during the COVID-19 Pandemic.
State & Local Guidance: Many states are now imposing new requirements on businesses operating or reopening during the COVID-19 pandemic. For example, New York State is issuing industry-specific, mandatory guidelines for businesses reopening following voluntary or mandatory closures and for essential businesses have that have been permitted to operate. One set of guidelines pertains specifically to office-based work. Other guidelines apply to businesses engaged in construction; agriculture; retail; manufacturing; wholesale trade; real estate; vehicle sales; rental, repair, and cleaning; commercial building management; and grooming. Additional guidance is expected as the state continues to reopen. The guidelines for each industry or setting include mandatory minimum standards and recommended best practices related to, among other things, physical distancing, protective equipment, hygiene and cleaning, communication, and screening. New York employers must affirm that they have reviewed and understand the state-issued guidelines and that they will implement them. Employers must also develop a written safety plan outlining how they will prevent the spread of COVID-19 and post the completed safety plan onsite. Employers may use the template provided by the state, but are not required to do so. New York employers should carefully review and implement any guidelines relevant to their operations. Employers with employees outside of New York will also need to ensure compliance with analogous state requirements, and employers are reminded that local authorities may promulgate additional guidance as well. For example, the NYC Department of Health issued recommendations for cleaning and disinfection for non-health care settings, such as workplaces, and general guidance for businesses on how to slow the transmission of COVID-19.
Additional Considerations for Reopening: In addition to reviewing federal, state, and local guidance, employers should consider the following as they plan for the return of staff to the workplace.
Planning
Establish a Return to Work Taskforce consisting of representatives from Human Resources, Facilities, IT, Legal, and Operations so that planning and implementation is coordinated across your organization.
Establish a Return to Work plan that is flexible enough to adapt to changing circumstances and employee concerns.
Consider reopening the workplace in phases so that operational issues can be resolved before work activity returns to normal levels.
Facilitating Social Distancing
Reconfigure workspaces to allow for social distancing and limit use of shared workspaces.
Determine what types of in-person gatherings and meetings will be permitted, and where they can safely take place.
Consider implementing staggered shifts or flexible working hours that limit office congestion and allow employees to avoid rush hour commuting.
Determine which employees/roles will be permitted to work remotely. There may be an increase in requests to work remotely and employers should develop standards for evaluating those requests. Employers must also comply with wage and hour laws pertaining to reimbursement for work expenses for employees who require equipment or supplies to work at home.
Determine which common spaces will remain available (cafeterias, break rooms, etc.) and how they will be used.
Consider implementing policies on when business travel is permitted.
Coordinate with building management to develop social distancing protocols for communal areas (lobbies, elevators, etc.).
Determine the conditions under which visitors will be permitted in the workplace.
Protective Equipment
Determine whether you are required to provide employees with acceptable face coverings, and how you will do so.
Determine a reasonable accommodations protocol for employees who have a medical barrier to donning a face covering.
Plan for and provide any required training depending on the type of protective equipment provided and applicable state and federal requirements.
Hygiene & Cleaning
Develop plan for providing sanitation in accordance with federal, state, and local guidelines.
Acquire and provide supplies and locations for handwashing or disinfecting and determine frequency of breaks for handwashing.
Determine frequency of office cleaning and disinfecting in accordance with federal, state, and local guidelines.
Health Screening
Determine whether and how you will conduct employee health screenings (e.g., questionnaire, temperature checks). Note that some locations, such as New York, may require some form of employee screening as a condition of reopening the workplace
If conducting health screening onsite, ensure that parties conducting screening maintain social distancing and have necessary protective equipment. Screenings should also be conducted in a manner to protect employee privacy and confidentiality to the fullest extent possible.
If employees are required to obtain health screenings remotely, ensure they are being properly paid for time spent submitting to screening, including travel, when required by wage and hour laws.
Store information obtained through employee health screening in a confidential manner and in accordance with any restrictions imposed by federal, state, or local law.
Implement a process and procedure for responding to an employee who is exhibiting COVID-19 symptoms, tests positive for COVID-19, has had close contact with an individual with a likely or confirmed case of COVID-19, or reports COVID-19 symptoms during the workday.
Communication
Train personnel on new protocols.
Identify a point of contact for employees or visitors to inform if they are diagnosed with COVID-19 or are experiencing COVID-19 symptoms and establish a process for maintaining the confidentiality of such reports.
Establish a mechanism to inform relevant parties, including state and local authorities, if a worker or visitor tests positive for COVID-19.
Consider implementing temporary policies for the duration of the COVID-19 pandemic to comply with updated federal, state, and local leave entitlements (e.g., NYS emergency sick leave, FFCRA) as well as temporary telework situations.
Returning Furloughed Employees
If returning furloughed employees, establish a fair and consistent process to avoid possible disparate impact or discrimination claims when determining which employees to return to work.
Consider whether wage and hour compliance has been affected by any changes to job duties, working hours, or compensation.
Consider and plan for discussions with unions regarding any impact to employees who are subject to collective bargaining agreements.
Determine how to respond to employees who are reluctant to return to work given the ongoing pandemic.
If you have any questions about returning staff to the workplace during the COVID-19 pandemic, contact Tonianne Florentino at tflorentino@fglawllc.com, Kristina T. Grimshaw at kgrimshaw@fglawllc.com, or Amanda M. Baker at abaker@fglawllc.com.
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