News & Insights
April 20, 2020
With COVID-19 numbers beginning to stabilize and some states announcing re-opening dates, many businesses are starting to see the light at the end of the tunnel. With that, many employers are asking key questions: What do we do to get ready and how do we do so without jeopardizing the safety of our workforce and our customers or clients?
There is much to consider and there seems to be no crystal clear path forward for employers. It appears that each federal, state and/or local government will ease restrictions differently depending on certain criteria and prevalence of COVID-19 geographically. It is unclear when that will happen and exactly what criteria will be used by each entity. Further, it's unclear how much coordination or consistency there will be between and/or amongst them.
While we are all aching to get back to normal, the thoughts of doing can seem daunting. To address these concerns and the questions raised by many employers, we have identified some of the broader issues to consider as we continue to hear from federal, state and/or local authorities about reopening strategies and criteria.
An Overview of the National Framework for Reopening
On April 16, the White House Coronavirus Taskforce announced its plan for reopening America after COVID-19. While the ultimate decisions about when to reopen will be left to governors based upon the conditions in individual states, the Taskforce proposed three phases of reopening, with each new phase triggered by meeting certain standards, called “gating.” Each phase contains specific guidelines for individuals, all employers, and specific employers in certain sensitive industries. These national guidelines are the overarching framework for any reopening.
When evidence in a state supports a “downward trajectory of documented cases within a 14-day period” or a “downward trajectory of positive tests as a percent of total tests within a 14-day period,” a state may enter Phase 1 of reopening.
According to the White House, states that have already met this standard were authorized to begin Phase 1 as early as April 17. In Phase 1, individuals are expected to maintain social distancing. Employers are to consider special accommodations for vulnerable populations, encourage telework whenever possible, return to work in phases, close common areas where personnel are likely to congregate, enforce strict social distancing protocols, minimize non-essential travel, and adhere to CDC guidelines regarding isolation following travel. Youth activities, senior living facilities, and bars and restaurants are to remain closed, while large venues, gyms, and elective surgeries are allowed to begin operating under strict protocols for distancing and sanitation.
States may enter Phase 2 if they do not experience a significant rebound of cases after 14 days. In Phase 2, individuals may resume non-essential travel and gather in groups of not more than 50 people, while vulnerable populations continue to shelter in place. Employers are to continue to encourage telework where possible, close common areas, and consider special accommodations for vulnerable populations but may resume non-essential travel. Youth activities, large venues, elective surgeries, gyms, and bars and restaurants will be allowed to reopen with less strict distancing protocols, while senior living facilities are to remain closed.
Phase 3 is the “returning to normal” phase. States may enter Phase 3 if there is no rebound of cases after 14 days in Phase 2. Vulnerable individuals may resume public interactions while practicing social distancing, while low-risk populations are cautioned only to minimize time spent in crowded environments. Employers are allowed to resume unrestricted staffing of work sites. And all sensitive industries, including senior living facilities, hospitals, large venues, gyms, and bars, may reopen with minimal distancing protocols.
Be Aware of State and Local Reopening Orders
State governors are responsible for making the final determinations about when and how to begin phased reopening. Therefore, it is important for employers to stay up-to-date on the current status of reopening plans in each state in which the employer operates, as standards are likely to vary from state to state. Many states have already announced the formation of state taskforces to coordinate reopening. To minimize variances, some states and cities have formed coordinated plans for reopening. For example, Michigan, Ohio, Wisconsin, Minnesota, Indiana, and Kentucky have formed the Midwest Regional Taskforce to coordinate their reopenings.
Local governments are developing reopening protocols too, which may vary widely from both the national and state guidelines. While the southeast does not currently have a regional taskforce, the mayors of Memphis, Nashville, Chattanooga, and Knoxville have formed the so-called Big Four Taskforce (formally, the Tennessee Major Metros Economic Restart Task Force) to coordinate the reopening of Tennessee’s metro areas. Employers should also stay on top of these local orders as well, which in many places may be more strict than the state guidelines. For example, while Texas began announcing protocols for reopening last week, Austin has in place a strict face-covering order that is expected to stay in place even as the state’s closure orders begin to loosen.
Brush Up on Your Insurance Coverage
It may be helpful for employers to spend some time with their insurance brokers to discuss their policies and ensure they are covered for various COVID-19 related possibilities. Employees who become ill with COVID-19 after being exposed at work may be covered by workers’ compensation insurance. Some states have issued explicit orders that COVID-19 be covered by workers’ compensation programs. Property insurance may also cover some COVID-19-related risks. More information about this from Waller’s insurance experts is available here.
Finally, if you have employment practices liability insurance, which usually covers claims for non-bodily harm brought by employees, this may cover any claims that allege wrongful termination, failure to provide leave, OSHA violations, or similar violations of employment laws. We expect that we will see an increase of COVID-19 -related claims, such as failure to provide leave and OSHA violations under the General Duty Clause (discussed more below), in the aftermath of the shutdown. For more information on how to prepare your business for possible COVID-19 related litigation, see our post here.
Avoid ADA Issues
On April 17, 2020, the EEOC issued new guidance on the potential application of the Americans with Disabilities Act (ADA) upon return to work. You can find the full guidance here. In sum, the EEOC says that businesses can probably continue taking precautions, like temperature checks and asking questions about whether an employee is experiencing any COVID-19 symptoms, before allowing employees to enter the workplace.
There has been some suggestion that employers may even be able to require antibody testing before allowing employees to return to work (though this kind of testing was not addressed by the EEOC’s guidance). The EEOC guidance also confirms that employers are also allowed to require returning workers to wear PPE like facemasks and gloves and enforce frequent handwashing and social distancing. More generally, the EEOC has said employers will probably not run afoul of any employment discrimination laws as long as they are following CDC and local orders regarding reopening.
Keep in mind that some employees may need reasonable accommodations of these requirements, including high-risk employees with underlying health conditions who may not want to, or be able to, come back yet. The EEOC is encouraging flexible arrangements and requiring employers to continue to consider special accommodations for vulnerable populations. Employers will be scrutinized if they deny telework accommodations when it has been prevalent over the last several weeks. The fact that the national phased reopening plan specifically includes accommodation for vulnerable populations may lend extra credence to an employee’s claim that their request for accommodation is reasonable and not an undue hardship under the ADA.
Be Mindful of OSHA Obligations
The Occupational Health and Safety Act requires employers to ensure their workplaces are “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” While OSHA hasn’t implemented new standards specifically for COVID-19, in recent guidance, it has said this general duty applies to COVID-19 related hazards. Therefore, before bringing back employees, it may be prudent to take certain actions to reduce certain hazards like cleaning, being prepared to provide PPE as required, and putting in place protocols for possible sick employees.
To reassure employees that all hazards are being addressed and minimize their concerns, consider putting in place clear explanations and assurances about safety precautions being taken (such as signage, periodic reminders of good practices, and employee updates). You should also consider holding trainings (probably virtual ones) about safety protocols that are in place, who to go to with concerns, and, for management and supervisors, how to address employee concerns.
Another consideration is, if practical, reconfiguring physical workspaces, such as rearranging workspaces to space out employees, placing barriers between workspaces, closing or modifying common areas, modifying high-touch surfaces (like turning latch doors into push doors and installing no-touch receptacles), and budgeting for and providing PPE (including disposable wipes, hand sanitizer, and masks for environments where social distancing is difficult). Taking these steps may help you avoid OSHA citations and potential employee lawsuits going forward.
Also, OSHA 300-logs will need to reflect any COVID-19 related workplace incidents. In certain sensitive industries such as the healthcare industry and emergency response organizations, employers must record cases of COVID-19, if: (1) the case is a confirmed case of COVID-19, as defined by Centers for Disease Control and Prevention (CDC); (2) the case is work-related, as defined by 29 CFR § 1904.5; and (3) the case involves one or more of the general recording criteria. In all other industries, employers will only need to record cases of COVID-19 when:
“There is objective evidence that a COVID-19 case may be work-related. This could include, for example, a number of cases developing among workers who work closely together without an alternative explanation”; and
The information was “reasonably available” such as “information given to the employer by employees, as well as information that an employer learns regarding its employees’ health and safety in the ordinary course of managing its business and employees.”
Revise Employee Policies
Some state and local governments have suggested their reopening orders may require that businesses develop written policies, especially around social distancing, before being allowed to reopen. You may consider revisiting and/or memorializing instructions from your trainings, instructions for requesting leave under the Families First Coronavirus Response Act (FFCRA), protocols for employee screenings, rules for non-essential travel and social distancing, discipline for violating social distancing and similar precautions, and similar policies. You may also consider implementing new policies for new issues, such as furloughs, working from home, and pandemic response, if you do not already have them.
Develop Protocols for Bringing Back Employees in Advance
Once the above protections are in place, most wisdom is that reopening should be done gradually, rather than bringing all employees back at once. This also appears to be what the federal government is recommending as part of Phase One of its reopening guidelines. One of your first steps should be deciding which employees should return first, and on what schedule other employees may return. To ease employee fears, consider letting all employees know about the gradual reopening and providing updates to employees how it is going (so they will see the employees at work are staying safe). You may also consider bringing back employees on reduced hours (splitting time between at home and in office). The national guidelines outlined above also require stepping down social distancing gradually, like minimizing in-person meetings, social gatherings, and travel for some period of time. Again, it is important to stay up-to-date on and follow all federal, state, and local guidelines on this front. Finally, if you have an Employee Assistance Program (EAP), you could consider making counselors and other supports available to employees who are concerned about returning to work and even making health screenings available (if not required).
Address Issues with Employees Who Do Not Want to Return to Work
Even once public health and governmental officials determine it is safe for employees to return to work, employees may still be reluctant to do so for a variety of reasons. In most cases, these situations can probably be handled by talking to the employee, hearing their concerns, and trying to address them, which may be as simple as explaining the protections that have been put in place to keep everyone safe. You should take the steps already outlined to accommodate employees who are at risk due to medical conditions or to assuage the fears of employees with OSHA-type concerns.
But what about more difficult situations, like an employee who says they are making more money from unemployment, or an employee who brags they never followed social distancing guidelines anyway, or an employee whose level of fear is clearly unreasonable? Turning down a “suitable job” is grounds for a claimant’s unemployment benefits to be cut off, and you can report the employee’s refusal to the unemployment office. For violations of social distancing, while you cannot control your employee’s behavior outside the workplace, you can make clear what the expectations are inside the workplace. You may wish to update your policies to including temporary social distancing rules, or at least conduct trainings about the new expectations in the workplace, as discussed above. Then you can follow your existing disciplinary policies, up to and including termination, just as you would for any other policy or safety violation.
Short of discipline, the EEOC has also made clear that employers can exclude employees who may pose a “direct threat” until the threat has passed. For an employee who simply refuses to return to work, even though all their concerns have been addressed, COVID-19 does not override your existing policies about refusal to work, and they can probably still be terminated for job abandonment. Take care to document all your communications with these employees, in case of future litigation. The overarching rule is to try to be flexible and understanding where you can, but follow your existing policies.
Stay Vigilant After Reopening
While federal, state, and local orders may lift or loosen in Phases 2 or 3, you should stay vigilant about any potential threats in the workplace after reopening. Health officials recommend establishing protocols for what to do if an employee tests positive, the threat reemerges, or other unexpected events take place. This might include protocols for how to notify employees of concerns, quickly implement work-from-home procedures, and identify which employees would be considered “essential” in case of an emergency. Moreover, while instances of employees requesting FFCRA leave should diminish for covered employers, the FFCRA is in place until December 31, 2020, so it is possible requests could still arise. Finally, you might consider putting in place protocols to limit visitors for some time, encourage more telework (when possible), minimize non-essential travel, and adhere to CDC guidelines regarding isolation following travel, all of which should be memorialized in a policy/guidance document distributed to employees.
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