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Employment Law Notebook

How to Reopen and Return Employees to Work During the COVID-19 Pandemic

As employers await the green light from their state lifting restrictions that closed their worksites or forced them to shift workers from working onsite to working from home, owners and managers can and should be brainstorming now about a return-to-work plan, and the policies and procedures needed to implement the plan. 

 We know making such preparations can be daunting due to employees being worried about returning to work and employers being concerned about complying with many legal requirements, keeping employees safe, avoiding lawsuits, and optimizing financial success.   To demystify this process, we have summarized key issues employers should considering when putting in place these plans, policies and procedures.  Return-to-work plans, policies and procedures will vary depending on the state in which the business is located, the industry it is in, the size of its workforce, its physical workspace, the type of work the employees do, and the regulations in place affecting the business.  However, this checklist should provide a helpful outline of key issues to address.

 1. CREATE A PLAN, UPDATE IT, DOCUMENT IT, DISTRIBUTE AND TRAIN EMPLOYEES ON IT

Create a written return to work plan that is legally compliant, safe, and practical. Keep it regularly updated, distribute it in writing to staff and managers, and train staff and managers on it. Ensure managers will monitor and address employees’ noncompliance with the plan. Be sure they know the person who will receive such reports of noncompliance.

 Understand, follow and be sure your plan and procedures incorporate guidelines on infectious disease mitigation, cleaning, disinfecting, social distancing, health screening, workplace safety and privacy, from government agencies such as the Centers for Disease Control (“CDC”), the Equal Employment Opportunity Commission (“EEOC”), the Occupational Safety and Health Administration (“OSHA”), state and local government, and other agencies and licensing boards governing your industries.  Review the relevant government websites at least once a week to ensure your plan, policies and procedures are compliant. (See chart at the bottom of this article for some helpful links).

 2. CONTACT NECESSARY THIRD PARTIES WHO AFFECT YOUR PLAN AND PROCEDURES

Contact insurance brokers for the company’s employment practice liability, general liability and workers compensation policy to inquire what coverage would be provided if an employee or visitor to your workplace contracts or believes they contracted COVID-19 at your worksite.

Contact your landlord to assess what measures the landlord will take to disinfect and clean bathrooms, common areas, (and your office, if applicable), reduce the number of people in elevators, lobbies and other common areas, and minimize infection spread.

 Consult with legal counsel to discuss compliance obligations and best practices.

 Contact suppliers of equipment or materials you need for the workplace and place orders for it.

 If your business received an SBA Paycheck Protection Loan, or other COVID-19 related loan, consult your accountant to comply with procedures for using funds, dates to use funds, and documentation required to ensure the loan will be forgiven (if applicable) and loan compliance.

 3. ASSESS WHAT JOB FUNCTIONS AND POSITIONS NEED TO WORK ONSITE, WHETHER EMPLOYEE CLASSIFICATIONS SHOULD CHANGE, AND WHAT REQUIREMENTS ARE NEEDED BEFORE EMPLOYEES RETURN.

If employees’ job duties and/or compensation has changed during this pandemic, assess if they still meet the standard for being classifying as salaried and exempt from overtime, or whether they need to be changed to non-exempt overtime eligible employees;

Consider bringing employees back in phases rather than all at once. Assess which employees should come back to work and when and who should continue to work from home and be sure decisions do not discriminate against protected classes of employees. Assess which functions that have been done from home should continue to be done from home for longer than others or permanently. If decisions are really subjective and employees do not need to return to the worksite but can work from home, consider giving them a say in the decision. See https://www.nytimes.com/2020/05/08/technology/coronavirus-work-from-home.htm

If employees are returning to work who were laid off, furloughed, or on a leave of absence, and are now returning to work, provide them with new employee materials and assess what paid benefits they are eligible for upon return.

Assess the impact of employees returning to work on employment contracts.

4. KEEP EMPLOYEES SAFE

Under the General Duty Clause of the Occupational Safety and Health (OSH) Act of 1970, 29 USC 654(a)(1), employers must provide employees with "employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm." This means employers must take affirmative steps to ensure workers are not exposed to the Coronavirus and to effectively respond if it does occur. OSHA has deemed the Coronavirus to be a recordable illness when a worker is infected on the job.

Follow legal requirements on infectious disease mitigation, cleaning, disinfecting, social distancing, health screening, workplace safety and privacy, from government agencies such as the CDC, OSHA, EEOC, state and local government, and other agencies and licensing boards governing your industries.  Review the relevant government websites daily if possible or at least once a week to ensure your plan, policies and procedures are compliant with current requirements.

OSHA and CDC have issued numerous publications with tips for employers on keeping the workplace safe. See chart at the bottom with helpful links

Create an infectious disease protocol for assessing and addressing employees and visitors with symptoms and those that have tested positive or been exposed to others with COVID-19 and for the return to work for those who get COVID-19.

Consult with legal counsel to assess what health screening protocols (such as temperature taking, symptom assessing, antibody testing) you are permitted to do  and assess which health screening protocols you will do to test employees for symptoms associated with COVID-19, and the virus itself, when you will do them, what you will do to record results, what actions you will take as a result of the results, and how you will keep results confidential and compliant with HIPPA and the Americans with Disabilities Act. Assess if someone at your company or a third party will do such screenings. See information from the CDC and EEOC on this topic. https://www.cdc.gov/coronavirus/2019-ncov/community/general-business-faq.html and https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act (question 7).

Employees Testing Positive: Establish a procedure when an employee tests positive or has symptoms of COVID-19, including but not limited to workplace contact tracing, required reporting to government entities, permissible and required disclosure to coworkers and other third parties, return to work requirements, and compliance with HIPPA and ADA requirements etc.

Assess and adjust employee schedules, shifts and breaks to keep social distancing in place on-site.

Assess what needs to be done to modify workspaces and common areas for employees and consider if you should limit visitors to certain parts of your facility.

Assess when you will permit non-employees into the facility and what you will require them to do before entering (wear PPE), sanitize hands, etc.

Assess what personal protective equipment (masks, gloves, etc.) to provide to returning staff and train them to use and clean it;

Assess what, if any, HVAC issues need to be addressed, and order such equipment/maintenance well before employees return.

Assess what materials, such as plexiglass and other barriers are needed to separate workers and order it well before employees return.

Assess what cleaning and disinfecting protocols are required and who will do them and when.

Employers must address employees concerns about dangerous conditions at work and cannot retaliate against employees for raising such concerns. Under OSHA, employees can refuse to work when they have a good faith belief that a hazardous working condition presents an imminent “risk of death or serious physical harm, there is not sufficient time for OSHA to inspect, and, where possible, the employee has informed the employer of the hazardous working condition.”  Additionally, various state whistleblower laws also provide employees protection from retaliatory action when they object to unsafe conditions at work.

Accordingly, employers should create procedures for employees to address their questions and concerns about workplace safety, exposure and privacy. Be sure supervisors know about the procedures, act on these questions and concerns, and that no retaliatory action is taken. This will go a long way to keeping employees calm and safe and reduce the likelihood of lawsuits and OSHA inspections.

Assess what changes need to be made to existing policies, such as those dealing with time off, safety, workplace injuries, and business travel in light of new laws and your new return-to-work procedures.  Consider establishing standard discipline that will be imposed for employees who fail to comply with safety precautions. Train employees and supervisors on revised expectations and policies.

Assess what signs to put up at the worksite and materials to provide to employees that are needed to enforce the new protocols.

5.     ANTICIPATE EMPLOYEE RESPONSES TO REQUEST TO RETURN TO WORK

 Be flexible in requiring employees to return to the worksite if they are able to work from home and ask to continue to do so due to the lack of childcare for their children, their concerns about returning to work due to their own health condition or the health condition of a family member that makes them more vulnerable to serious illness if they contract COVID-19. Develop a plan of how you handle these requests.

 Establish a procedure and response for responding to employees who say they will not return to work or demand indefinite remote work arrangements solely due to their fear of exposure and not for other reasons cited above.

 Handle employees who have been on or need a leave carefully.  The leave laws have become even more complicated due to COVID-19. 

If employees cannot return to work, encourage them to apply for unemployment, temporary disability benefits or family leave insurance, if applicable.  Do not make statements to them regarding whether or not they will qualify as the state makes such decisions and has relaxed standards for these programs due to COVID-19. 

The attorneys at Meyers Fried-Grodin can help you develop a return-to-work plan, policies and procedures.

LINKS TO GOVERNMENT WEBSITES WITH INFORMATION REGARDING COVID-19 ISSUES AT WORK

 CDC Guidance for employers:

https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fspecific-groups%2Fguidance-business-response.html

https://www.cdc.gov/coronavirus/2019-ncov/community/general-business-faq.html

See also specific guidance for your industry on CDC website.

Information from OSHA:

https://www.osha.gov/SLTC/covid-19/standards.html

https://www.osha.gov/Publications/OSHA3990.pdf

EEOC Guidance:  https://www.eeoc.gov/coronavirus

U.S. Department of Labor: https://www.dol.gov/coronavirus

New Jersey Department of Labor: https://www.nj.gov/labor/worker-protections/earnedsick/covid.shtml

New York Department of Labor: https://dol.ny.gov/unemployment/unemployment-insurance-assistance

New Jersey Department of Health: 24 hours a day NJ Coronavirus Hotline 1-800-222-1222 or if calling out -of-state use 1-800-962-1253. website: https://www.nj.gov/health/

New York Department of Health website: https://www.health.ny.gov/