As New York State begins phasing out its stay-at-home order and permits non-essential businesses to reopen, employers are left with uncertainty surrounding how best to proceed in returning their employees to work amidst numerous legal and logistical challenges. The following is an evolving checklist of considerations for reference to kick-start the opening process at your business:
Return to Work Plan
- Develop and document a comprehensive plan for how your business will return to work that is specific to your workplace, identifies all areas and job tasks with potential exposure to COVID-19, and includes control measures to eliminate or reduce such exposures.
- Review the U.S. Center for Disease Control and Prevention’s (CDC) recommendations, including, but not limited to:
- Posting signs encouraging hand washing
- Providing hand sanitizer
- Providing/requiring employees to wear cloth face coverings in the workplace
- Increase environmental cleaning
- Discouraging the sharing of workstations
- Implementing policies and practices for social distancing in the workplace
- Conducting daily health checks
- Conducting a hazard assessment of the workplace
- Review the U.S. Department of Labor, Occupational Safety and Health Administration’s COVID-19 guidance for information on how to protect employees from potential exposures.
Appoint a team or person to be responsible for coordinating all COVID-19 related issues
Determine which employees can/should return to work
- When making this decision, be sure utilize a selection criterion based on legitimate, non-discriminatory business needs that do not have a disparate impact on protected classes, and document the selection criteria for each employee.
- High-Risk Employees – The CDC has identified certain groups of people as being at higher risk for developing complications from COVID-19, such as older adults and individuals with pre-existing medical conditions. Consequently, employers must balance protections for high-risk employees against potential violations of the Americans with Disabilities Act (ADA) and other state and local anti-discrimination laws. Employers should review the EEOC’s ADA-related guidance to determine whether to provide reasonable accommodations for certain high-risk groups. For example, while employees with pre-existing medical conditions may be entitled upon request to a reasonable accommodation, pregnant women and older employees with no symptoms should generally be treated the same as all other employees in determining workplace arrangements.
- Employers are permitted to exclude individuals infected with COVID-19, or exhibiting symptoms, from returning to work for the health and safety of the workforce.
- If an employee refuses to return to work, take the time to consider the reason(s) for the refusal and consider potential reasonable accommodations such as teleworking. If no reasonably accommodation is available, consider sick leave, personal time off or a short leave of absence before declaring the employee’s refusal to return to work as job abandonment. Be aware of new laws such as the Families First Coronavirus Response Act (FFCRA) (including Emergency Paid Sick Leave (EPSL) and Emergency Family Medical Leave Expansion Act (EFMLEA)) and new local COVID-19-related paid sick leave ordinances, as well as laws such as the Family Medical Leave Act (FMLA), the ADA, and state leave laws.
Flexible/Staggered Work Schedules
- The CDC recommends implementing staggered work schedules so as to reduce the number of employees in a workplace – try to adjust workplace hours and shift designs to reduce employee density in the workplace throughout the workday.
- Consider limited or eliminating access to communal areas in the workplace.
- Combat employee burnout by providing additional breaks and days off to permit employees time to deal with stress and concerns about COVID-19.
Solicit Health Information from Employees Selected to Return to Work
- Employers are permitted to ask question to determine if employees have or may have had COVID-19. However, the EEOC has cautioned that employers should not ask employees whether they have family members infected with COVID-19.
- Employers are permitted to measure the body temperature of all employees and visitors who are physically entering the workplace. Employers utilizing temperature screening should maintain a confidential log of all results.
- Employers are permitted to require employees to take and submit the results of an antibody blood test and/or COVID-19 test prior to returning to work.
- Keep all medical information confidential and stored separately from employee personnel files.
- Be aware that as the “direct threat” level decreases, prior EEOC rule prohibiting medical exams may be reinstated.
Watch for Employees Demonstrating Symptoms of COVID-19 in the Workplace
- Be vigilant in screening employees for symptoms of COVID-19 after they have returned to work – employers are permitted to send an employee home if he/she is exhibiting symptoms associated with COVID-19.
- Encourage employees to self-monitor for signs and symptoms of COVID-19, and to contact their health care provider if they suspect possible exposure.
- If an employee is found to be sick, inform all employees who were in contact with the infected individual that they may have had contact with someone who has, or may have had COVID-19 (note that written permission is required from the infected individual in order to reveal his/her identity).
- If an employee refuses to comply with screening procedures, an employer is permitted to prohibit the employee from entering the workplace.
Disseminate Current Resources and Information
- Provide employees with information concerning the steps your company is taking to provide a safe workplace.
- Direct employees to resources that provide current updates, such as the CDC website.
- Make sure employees are aware of group health plan benefits and/or any employee assistance plan (EAP) that may be in place.
The foregoing information is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Please visit certilmanbalin.com often to stay abreast of developments or contact your Certilman Balin attorney directly with any questions.