Faced with the need to bring employees back into their workplaces to keep businesses functioning, employers need to carefully decide when and how to reopen. 

There are several steps companies need to take, and we have outlined five of the most important steps here.

1: Sanitize and Plan Future Sanitary Practices

Before inviting your employees to return to the workplace, it is important to ensure that it has been thoroughly cleaned. 

The practical truth is that, even if you have been closed for business, employees may have popped in occasionally to gain access to their items, to work-related paperwork or devices necessary for them to work from home, and to pick up mail and perform sundry other tasks. Don’t assume that no one has brought the virus into the office, even if the office has been ‘mostly closed.’ Sanitize. It is one of the easiest and most effective ways to protect your employees from harm, and you have both a legal and ethical duty to provide them with a safe workplace.

Put in place a return to work policy that includes a plan for continuing sanitation:

• Do you have a breakroom? 
• What rules need to be put in place to keep it safe? 
• Do you have a communal ping pong table or gaming console? 

Make sure sanitation supplies are on-hand and the return to work policy establishes rules for sanitation between uses and proper social distancing during use (no hovering over someone’s shoulder at the console, no around-the-world ping pong with shared paddles). 

Things that seem obvious can be easy to forget as people slip back into old work habits. 

Provide sanitation supplies for your workers. Where appropriate, provide them with PPE. Give clear instructions for sanitation, and post them where appropriate (in break rooms, in communal spaces like elevators and conference rooms, etc.). Enforce the cleaning policies and educate your employees on their importance.

2: Establish a Symptom Checker

COVID-19 is particularly contagious because it can have a long asymptomatic period. 

Employees may not know that they have been exposed, increasing the risk that they can inadvertently infect others during the incubation period. To help protect your workforce, you should require a self-assessment that determines whether it is safe for them to return to the workplace. That assessment should be performed any day the employee plans to come into the workplace—anything less destroys the point of the assessment because one day’s activities or symptoms can make an incredible difference in whether it is safe for an employee to come in. 

In addition to asking employees whether they have experienced symptoms of COVID-19 or tested positive for it, a symptom check should also inquire into whether they have had potential exposure. 

For example, in addition to asking whether an employee has had symptoms, a check should inquire as to whether the employee has been in close contact with someone who has tested positive for the virus or shown symptoms of the virus. A checker should also inquire as to which other employees a person has been in contact with if they are showing signs of COVID19 or have tested positive. 

A return to work policy should be in place to determine, based on their answers, which employees can report to the worksite. The policy should also determine how to inform individuals if they may have been exposed through a coworker. The checker will allow the employer to proactively identify those potentially exposed employees, provide for their testing (if possible, if not, the employer should certainly encourage them to get tested), and put them on work from home procedures until they can be tested. Such a process will reduce disease spread through the workforce and keep the company compliant with OSHA requirements to provide a safe work environment.

Employees will have privacy concerns, which is appropriate. You will be collecting sensitive information. Put in place privacy controls, and policies and procedures to handle both the information itself and the process for informing employees if they need to stay home, go home, remain at home, or are clear to come in to work. 

3: Identify Social Distancing Procedures

Employers need to identify social distancing rules appropriate to their specific workplaces and functions. Many industries will have industry-specific guidelines. 

For example, retail spaces should have social distance markers set up to keep customers at appropriate distances while they wait in line. 

Restaurants are highly likely to have special local guidelines in place coming from the city, county, or state. 

The entertainment and sports industries are likely to be under special rules regarding capacity, visitor spacing in seating (with distancing rules set up ‘per household group’ as opposed to per person), and established window times for high-risk groups. 

All organizations should follow general social distancing guidelines and put in place rules appropriate to the specific workplace. 

If the building is a multi-tenant property, the tenants and landlord should work together to enact and enforce rules that will protect everyone’s employees and visitors. For example, in buildings with elevators, which are small enclosed spaces, strict capacity rules should be set and posted. If your organization uses an open floorplan, appropriate safety measures should be enacted to distance employees as much as possible. This may include needing to establish a return to work policy that includes a tiered approach, returning smaller cohorts to the office at a time. 

This will allow social distancing to be maintained while organizations determine long-term solutions to accomplish social distancing needs. 

Social distancing rules should be posted throughout the workplace, reminding employees not to congregate, to refrain from shaking hands, and to maintain appropriate distance whenever possible. 

4: Review State and Local Guidelines

Because of the way coronavirus moves through communities, it is particularly important to review your local and state guidelines to ensure safety and avoid potential regulatory violations. 

While some states have already begun lifting stay-at-home and shelter-in-place orders, other states have not done so. Similarly, even in states that may be lifting restrictions generally, hard-hit counties and cities may keep more strict guidelines in place to ensure community safety. 

While the guidelines may feel restrictive, they also give your organization a level of protection. If you are at some point accused of negligence, compliance with governmental guidance can go toward a showing of reasonable care. 

You should visit your state’s Department of Workforce Services website. The majority of states have set up COVID-specific guidance pages that will link to the workforce services site. If you cannot find one there, try looking at your state’s general .gov website. Review the state action plan for returning to work. The plan likely involves escalation levels–red is typically a shelter in place situation; orange may allow some people to return to work but with specific guidelines in place for social distancing and sanitation and some industry-specific regulations (as noted in the social distancing section of this piece). 

At a minimum, you need to follow the state-specific guidance. However, if there is a higher level of regulation in place coming from county or city authorities, you need to adhere to that higher level. Base your compliance on the location of your worksites. If you have employees commuting from cities or counties that may be at a higher regulation level than the worksite, keep in mind that you need to account for their compliance with local regulations when you create your return to work policy.

5: Communicate Return to Work Policies to Employees

To return your employees to work while the COVID virus is still circulating, you need to create policies to help you work through all of the associated decisions. For example, if you put a COVID assessment in place but do not follow-up on the answers and direct at-risk employees to stay home or inform exposed employees that they have been exposed, the assessment check loses its ability to protect your business from potential liability and your workforce from illness and injury. 

At the same time, you need to ensure that the instructions you give do not violate privacy, so potentially exposed employees should be informed without disclosing the identity of the coworker who tested positive for COVID. 

These and other related decisions should not be made in the moment. However, having a policy in place is not enough. 

You need to clearly communicate your policy regarding returning to work, working from home, family and medical leave, and all other COVID-related plans to your employees. They are your front line in ensuring that business can resume, and communicating with them will strengthen their ability to understand and follow your policies. It will also give them greater trust. 

Many employees have reported stress and anxiety about returning to the workplace, especially if they or their families members are in at-risk categories. Taking proactive measures to protect them and communicating that to them to ensure they understand your policies, will increase their willingness to return and to follow the procedures you set in place.

See SixFifty and Wilson Sonsini’s Return-to-Work tool here.

 

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Written by Marie Kulbeth

Marie Kulbeth is a Co-Founder and General Counsel of SixFifty, and the co-director of BYU LawX, a legal design lab dedicated to solving access to justice problems. She works to make the law straightforward for everyone, regardless of education level or income. Marie keeps her passion for equitable, accessible legal services at the forefront of her career. Her role as...

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