Employment Issues to Consider as Businesses Get Ready to Re-Open After COVID-19

COVID-19 Update

Date: April 20, 2020

Key Notes:

  • Issue spotting key employment issues as employers prepare to return employees to their physical workspace in the wake of COVID-19 closures.

After weeks (if not months) of state “stay-at-home” and “shelter-in-place” orders, social distancing mandates and telework, there may be light at the end of the tunnel for businesses looking to get back to work in their workplace. Although it remains to be seen when, and under what conditions, businesses will be able to resume regular operations, employers should start thinking now about how to do so in a manner that minimizes legal risk. Consideration should be given to requirements or recommendations issued by federal and state government officials, including the U.S. Department of Labor (DOL) and the CDC, which endorses a phased re-opening.

For businesses in most locations and industries, re-opening will not occur overnight and may involve gradual steps. In preparation, it is important for employers to have a plan in place that addresses a wide range of topics and that is tailored to the workforce and workspace. Thompson Hine is ready to help your business issue-spot key areas for employment concern.

The Physical Office Space and Returning Employees
  • Consider de-densification. Depending on the nature of the business and its operations, consider an incremental return to operations by assigning teams of employees to physically work in the office, while others continue to work remotely (and then swap) for a designated period of time. When determining which employees first return to the physical workspace, the decision should be based on legitimate business needs and not on employees’ protected classifications, such as age. Manufacturers may consider staggering shift times and meal and rest breaks (while maintaining compliance with state law requirements).
  • Confirm compliance with social distancing guidelines. Before any employee sets foot back into the workplace, audit whether the physical space allows (or encourages) employees to comply with social distancing guidelines. Spread out workstations where possible and designate six feet of distance where lines are likely to form, such as near entrances, timeclocks and in cafeterias. The CDC recommends that common areas be closed or that a plan be put in place to limit congregation in those areas. For example, in eating areas, all or a portion of the tables or chairs may need to be removed. Limit in-person meetings to a small number of attendees and only as needed. To the extent possible, curtail visitor access to the workplace. Where in-person visitor access is business-critical, consider requiring a visitor self-screening questionnaire to identify potential risk of exposure.

  • Prepare with PPE. Employers can require employees to wear protective gear (for example, masks and gloves) and observe infection control practices, such as regular hand washing. Employers should endeavor to follow applicable DOL guidance.   Ensure that the office space is sufficiently stocked with the necessary sanitization and protective equipment, including soap, hand sanitizer, disinfectant wipes and potentially masks for employees. Schedule frequent and regular cleaning of high traffic areas like shared equipment, timeclocks, kitchens and cafeterias, water coolers, doors, bathrooms and copy machines.
Employee Health and Welfare
  • Medical clearance for returning employees. If an employee is confirmed or suspected to have COVID-19 or has been required to quarantine by a doctor because of his/her proximity to an individual with COVID-19, require medical clearance before the employee returns to in-office work. For employees who have not been ill, businesses should consider requiring employees to self-certify that the employee is and has been symptom-free and not in close personal contact with anyone who has been quarantined for COVID-19.

  • Employees who object to in-office work. Be prepared to respond to employees who refuse (or are hesitant) to return to the physical workspace upon re-open. If an employee has an underlying medical condition that makes him/her more susceptible to becoming ill or who claims mental health issues resulting from a return to work, employers should engage in the ADA interactive process to determine if they must accommodate a longer period of teleworking. Pre-plan how to handle an employee who does not have any underlying disability but is still fearful of becoming ill by working in the office. Employers will need to balance these requests for additional flexibility against the precedent it will set for other employees.

  • Signs of illness in the workplace. The EEOC has recently opined that employers may continue to take employee temperatures and ask questions about COVID-19 symptoms without running afoul of the ADA, as long as any screening implemented is consistent with advice from the CDC and public health authorities for that type of workplace at that time. When the COVID-19 threat has dissipated, such screenings may once again run afoul of the ADA unless job-related and consistent with business necessity. Businesses should continue to send sick employees home and can require documentation from a medical provider that the employee has been cleared to return to work. Employees should be required to notify a designated company representative if they have developed COVID-19 symptoms or are required to quarantine.

  • Contingency plan for a COVID-19 re-closure. Establish procedures for the potential that an employee tests positive for COVID-19 after the business has re-opened. The plan should ensure that the workplace is thoroughly cleaned and sanitized. Consider contracting with a vendor beforehand so that the vendor can immediately be called in to clean. Also, describe whether all or some employees must return to telecommuting for a specified period of time and require an evaluation as to whether the incident qualifies as an OSHA recordable event. The CDC also recommends developing and implementing policies and procedures for workforce “contact tracing”, which involves identifying persons who may have been exposed to employees with suspected or confirmed COVID-19 during the infectious period. As a result, other employees and third-parties (customers, vendors, contractors and others) may need to be notified that they have potentially been exposed to COVID-19.

  • Business travel. During the early phase of re-opening, it is recommended that non-essential travel be minimized and that employees follow any CDC or state guidelines regarding isolation following travel. In addition, employers should consider how it will handle employee objections to essential business travel.
Employer Policies
  • Attendance and available leaves. During the COVID-19 pandemic, many employers have relaxed or modified attendance, PTO, sick and other leave and benefit policies. Determine the right time to restore pre-COVID-19 policies and ensure that employees are provided notice of the “new” expectations.

  • Address FLSA matters. Employers should not short-shrift wage and payroll matters, particularly those that might have been hastily implemented to address quickly-changing COVID-19 requirements. For example, if the business is seeking to re-capture the employee’s share of benefit contributions that were made by the employer during a furlough, obtain proper written authorization in accordance with state law. Ensure state-specific notice is given to employees before re-establishing former pay rates or pay periods. Because of the risks associated with constantly shifting exempt employee salaries, employers should have a long-term strategy before changing pay. For non-exempt commission-based employees, confirm that employees are receiving the minimum wage for all hours worked if sales are slow. In addition, consider whether commission or bonus targets need to be re-evaluated.

  • Handling potential childcare needs. Although businesses will start to re-open, numerous states have already cancelled school for the remainder of the term, and other childcare facilities may be slow to re-open. Businesses with less than 500 employees that are subject to the Families First Coronavirus Response Act (FFCRA) should already be implementing paid sick time and emergency FMLA for employees who require leave to care for a child whose school or daycare has closed. Companies that are not subject to the FFCRA should evaluate what teleworking opportunities or leaves are available to employees without alternative childcare arrangements due to these closures.

  • Performance expectations. Given the changed environment, evaluate whether new performance expectations, goals, or quotas should be established for employees, or whether pre-COVID-19 expectations should be re-affirmed. For employees whose jobs historically did not involve telework, employers should re-establish the expectation that employees work from the physical office once the gradual phase-in back to the workplace is complete.

  • ADA accommodations. Many companies had no choice but to find creative ways to continue operations from home. After many employees have teleworked for weeks on end, when faced with an employee request to work remotely as an accommodation for a disability, it will be more difficult for an employer to argue that telecommuting is an undue hardship. If an employee has been teleworking, but his or her position’s essential functions require an in-office presence, consider ways to re-emphasize those essential functions.

For more information, please contact your Thompson Hine Labor and Employment counsel to discuss any questions about re-opening your business.

Megan S. Glowacki

Keith P. Spiller

Additional Resources

We have assembled a firmwide multidisciplinary task force to address clients’ business and legal concerns and needs related to the COVID-19 pandemic. Please see our COVID-19 Task Force page for additional information and resources.

This advisory bulletin may be reproduced, in whole or in part, with the prior permission of Thompson Hine LLP and acknowledgment of its source and copyright. This publication is intended to inform clients about legal matters of current interest. It is not intended as legal advice. Readers should not act upon the information contained in it without professional counsel.

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