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FAQ: Employers should plan for reopening

May 20, 2020

Waller has created this FAQ to assist employers prepare to reopen their doors and return to “normal” operations. It is critical that businesses develop a reopening plan and communicate new expectations before employees return. There are many issues for businesses to consider when making a plan to reopen. Included below in FAQ format are questions/recommendations to consider in formulating a reopening plan that makes sense for your business. Other information for employers deliberating reopening is available in our prior article and podcast.

General Considerations

When should my business reopen?

You should consider reopening after you clear three important hurdles: first, after the removal of any applicable federal, state, or local stay-at-home order; second, after your company plan has been developed and communicated to employees; and third, after your company is prepared for the reopening by making any necessary changes to the physical work environment, procured any personal protective equipment (PPE), hand sanitizer, etc., and otherwise prepared the work environment to allow for your plan to be implemented. Checking these items off your list before reopening will make the transition smoother and your employees more confident in their safety as they return to work.

Who should return?

Many businesses plans include the formation of a small leadership team to develop and implement its reopening plan. If appropriate for your business, this team should be among the first group to return to the work environment to ensure that the plan is able to be rolled out as intended and to make any adjustments in the plan. Some experts suggest making this team as diverse as possible, including both people who are excited to return to work and those who still have reservations, to ensure you are addressing as many potential concerns as possible.

Beyond the leadership team, consider whether a staggered or phased-in return of employees makes sense for your business and is in line with local governmental orders. Many state and local governments’ reopening orders do not allow all employees to return to work at once. In deciding which employees to bring back first, consider factors like what job duties are best performed in the workplace versus at home, which jobs are needed to run basic functions that aid other jobs, and which jobs are needed to get the company reopened. For example, in a factory, line workers cannot work from home, but administrative staff may be able to; in a law firm, administrative assistants are crucial to helping attorneys; and a restaurant cannot run without cooks.

Review and revise, if necessary, your “work-from-home” or “flexible work arrangement” policies. As you prepare for reopening, this will help govern those workers who remain at home longest or who may be unable to return right away. . In the long term, this will make the transition easier if it becomes necessary for most if not all employees to work from home again.

What are my OSHA obligations?

Standards set by the Occupational Health and Safety Agency (OSHA) are especially important to employers in the manufacturing, construction, and other industrial settings, but they apply to all employers. The Occupational Health and Safety Act requires all employers to provide a safe work environment that is free from “recognized hazards that are causing or are likely to cause death or serious physical harm.” While OSHA has not made new standards for COVID-19, it has said that employers should look to its existing standards for things like blood-borne pathogens and PPE. Additionally, if an employee contracts COVID-19 at work, it may count as a reportable injury that must be submitted to OSHA. OSHA has the power to conduct audits of business to assess the effectiveness of implemented safety measures, and has signaled they will do so for COVID-19, so it is crucial to your return to work plan meets your OSHA obligations for keeping employees safe.

Personal Protective Equipment (PPE)

Should masks/gloves be required?

Some state and local reopening plans require the use of PPE, such as masks and gloves, for certain businesses, and these rules are enforced by state and local health authorities. Check your state and local plans first. If your business is not covered by such rules, the decision of whether to “require” or “recommend” the use of masks is just that—a business decision that you are free to make. Your leadership team should discuss the pros and cons of making masks/gloves a requirement, a recommendation, or deciding not address the issue at all. Some businesses have landed in the “middle ground” by encouraging its employees to wear masks when in common areas, as opposed to individual offices. Even if you do not require employees to wear masks, it is probably a good idea to allow employees who feel more comfortable to do so, unless it impairs their ability to perform their job functions.

Also, consider whether the landlord or management company of the building in which your business is located in requires masks or gloves when entering or using common areas. Landlords may have their own unique restrictions, so make sure to know what those restrictions will be and help prepare your employees for them.

What other supplies should we provide?

Most businesses are providing ample supplies of hand sanitizer, hand soap, disinfectant wipes, and related materials throughout their work areas. If you are part of an industry that requires masks or gloves, applicable governmental orders may require you to provide this PPE to your employees free of charge as well. Even if you are not, it is a good practice to provide employees in need with their own personal PPE, which will ensure your business does not run afoul of a government enforcement action just because an employee did not have access to proper equipment.

In-Office Protocols

What new deep-cleaning and disinfection measures should we take, and how often should they be utilized?

Throughout the COVID-19 pandemic, most federal, state, and local governmental agencies and guidance have encouraged employers to follow CDC guidelines for keeping their workplace clean. You should continue to keep up with this guidance, which has and will continue to change as the pandemic and recovery progress. Currently, the CDC says that for most indoor areas, your normal, existing cleaning routines are sufficient, as the coronavirus does not live long on most surfaces. For high-touch surfaces like light switches, doorknobs, and hard surfaces in communal areas, there should be more frequent cleaning using both soap and water and an EPA-approved disinfectant or bleach or alcohol solution. You should consider removing completely porous materials, like rugs and seating, that are more difficult to clean. Some frequently touched items, like shopping carts, should be disinfected between each use. Try avoid the use of items like computers and telephone by more than one person for the time being. If employees must share these items, keep hand sanitizer and wipes stationed nearby and train employees on wiping down shared spaces before and after use. The CDC also recommends training employees charged with cleaning on proper techniques and protections and the use of PPE like masks, gloves, and gowns, including while handling trash.

Who is responsible for cleaning certain working areas (personal offices, common areas, etc.)?

The CDC has said that regular cleaning staff can be responsible for cleaning and disinfecting community spaces. As discussed above, it is also a good idea to keep cleaning supplies like hand sanitizers and wipes in these areas so employees can clean up for themselves before and after use. For personal areas, disinfecting is probably not required unless the person has been ill; routine cleaning practices will do.

Do we need to review/revise protocols for inbound deliveries of parts/materials/package?

If you currently require that every item be signed for, you should consider temporarily allowing doorstep or other forms of no-contact delivery except where a signature is required by law. Where a signature is necessary, some delivery services have changed their rules so that they accept their driver’s signature affirming the package was delivered rather than the recipient’s or allow the recipient to log their signature using an app or website rather than actually signing with the driver. You should try to use these options whenever possible. When touching newly delivered items, consider the use of gloves and instruct employees to thoroughly wash their hands and avoid touching their faces.

How do we implement social distancing protocols?

These decisions are highly dependent on your individual space and employees’ needs, as well as the governmental orders that may govern your reopening. As usual, it is a good idea to begin by following CDC guidance. You can start by thinking through every part of your employees’ day, from walking to the building, to riding the elevator up, to walking through the lobby, to taking a lunch break, to trips to the coffeemaker and restroom. Develop specific protocols for each unique area. Depending on the area, you may need to remove chairs, move tables farther apart, mark safe distances on the floor in open areas, make hallways one direction or mark “lanes” in each direction, close or limit common areas, develop staggered lunch, break, and other times, and limit occupancy in conference rooms, elevators, or restrooms, just to name a few. Many businesses will likely continue to use telephonic and/or video-conferencing as the primary format for meetings, large and small, internal and external.

General Health Screening

How do we make sure our employees are healthy enough to come to work?

Decide whether any recall/onboarding/return to work paperwork will be required, such as a certification from the employee or the employee’s physician that the employee has not tested positive for COVID-19. Decide whether you will ask your employees to take their own temperature, whether you will require employee temperatures before entering the building, or otherwise require employees to confirm that they are symptom free.

Can we implement temperature checks, reporting, sign-ins, and other protections to ensure employees are not sick?

Yes, due to the ongoing pandemic conditions, employers may continue taking precautions like requiring employees to undergo temperature checks on their way into the building and asking employees to verify that they have not experienced symptoms or been in contact with a sick individual, including requiring employees to sign in and verify their status. The allowability of these protocols may change as the pandemic threat lessens, so be sure to keep up with recommendations from the CDC and EEOC.

Communications to Employees

How should we communicate our reopening plan to employees?

Many businesses are creating written plans, PowerPoint presentations, and similar documents to use as a guide for their employees regarding return-to-work protocols. The communication can be a FAQ format like this or any other format that best captures the information employees will need moving forward. As already discussed, it is a best practice to communicate with employees before they return to the office, so they will know what is expected on day one.

We recommend that the materials emphasize that the employer will be following all CDC, state, and local health guidelines, rules, and regulations.

Companies should encourage their employees to continue to practice self-care and healthy personal hygiene whether they are in or out of the work environment. These recommendations include:

  • Washing hands often and effectively
  • Avoid touching your face
  • Cover coughs and sneezes
  • Properly disposing of tissues, gloves, masks, etc.
  • Social distancing
  • Frequently disinfecting commonly used surfaces

Reminders of the foregoing should be posted in the workplace common areas, such as bathrooms, breakrooms, and hallways. The CDC, WHO, and many state and local agencies offer posters and signs on a number of topics that you can download and print free of charge.

If an employee feels hesitant to return to work, what are his or her options?

As long as an employer is meeting CDC guidelines, OSHA standards, and related guidance, it can require all employees to return to work. If an employee is hesitant to return, the best thing to do is to talk to the employee and try to address his or her concerns. This may be as simple as explaining the steps you are taking to keep everyone safe. If the employee expresses that they are concerned because of some underlying health condition that makes them more vulnerable, this may trigger your duties under the Americans with Disabilities Act to engage in the interactive process. You should try to work with these employees to establish workarounds that will protect employees who may be more at risk due to underlying conditions, like remote working, providing a more isolated working space, and requiring other employees to wear facemasks when interacting with the vulnerable employee.

Additionally, if you have fewer than 500 employees and are covered by the Families First Coronavirus Response Act (FFCRA), remember that your obligations to provide paid sick leave and paid expanded FMLA leave to employees for certain COVID-19 related circumstances are in place until December 31, 2020. This leave is available for employees who are under a governmental or medical quarantine order that makes them unable to work or telework, have been diagnosed with or are being tested for COVID-19, are caring for someone under a quarantine order, or are caring for their children whose school/child care is closed due to COVID-19. For more information on your obligations under the FFCRA, Waller has a number of other articles available, including this FAQ and this more detailed analysis of the Department of Labor’s regulations governing the FFCRA.

If, after explaining the steps you have taken to comply with all required guidelines and offering these accommodations, the employee still refuses to return to work, there is no prohibition on implementing your regular policies for employees who refuse to work, up to and including termination.

What if you have an older or otherwise potentially vulnerable employee who wants to return?

This has been a difficult issue for many employers to address. Human Resources professionals are generally hesitant to “play doctor,” meaning that it’s often best to refer employees to medical professionals rather than to make assumptions about the health and capability of an employee to safely perform his/her job function. Depending on the size and type of business you are in, managers may have a tendency to become “paternalistic” when it comes to protecting their employees. While this concern for employees is a benefit, remind managers that their role is not to provide medical advice or counsel to employees. The EEOC has warned that employers may run into issues with the federal Age Discrimination in Employment Act, Americans with Disabilities Act, and other laws that prohibit discrimination or require employers to engage in an interactive process to explore potential accommodations, as discussed above.

What if an employee tests positive?

A step-by-step overview of what to do when an employee tests positive for COVD-19 is available here and in our other materials on reopening. While you should tell your other employees that a coworker has tested positive, the EEOC has made clear that employers must never reveal the name of the employee to coworkers without the employee’s permission, even if you think their coworkers should know or will figure it out. Instead, designate the people in management who have a “need to know” and limit the information to them. You can and should report the employee’s diagnosis to the appropriate health authorities.

Additional Resources

OSHA Guide to Safe Work Practices

OSHA Control and Prevention Practices

OSHA Ten Steps to Preventing Infection

OSHA Guidelines to Reporting Coronavirus Cases

CDC Guidelines for Employer, including Airlines, Schools, Shipping, and Other Industries

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