As federal and state governments take steps toward reopening the economy, many people are heading back to work. However, employees are anxious about their safety as they do so.
Employers are similarly anxious, with the added burden of concern about their liability if they bring employees back who are then exposed to the virus in the workplace.
As employees begin returning to their offices, employers need to take precautions in order to comply with state, federal, and local laws and regulations:
- Will employees be screened before returning to work?
- How are employees notified of changes to their work environments?
- What policies need to change?
- How are employee concerns about returning to work addressed?
These questions have significant implications on a business’s compliance with a myriad of laws, and, more importantly, on the health and well being of their employees. We will address the legal and practical aspects of these questions.
Providing a Safe Place for People to Work
We recommend that you screen your employees for COVID-19 before they return to the office. The Occupational Safety and Health Administration (OSHA) requires employers to furnish each employee with a place of employment that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” OSHA also advises that employees should assess hazards their employees may be exposed to, evaluate the risk of that exposure, and select, implement, and ensure that workers use controls to prevent exposure.
Because people with COVID-19 can be asymptomatic for long periods of time while they are contagious, the many businesses have, either at the direction of government or out of their own sense of caution, moved to a remote work environment of furloughed employees during the pandemic.
Now, states are beginning to lift or trim back their stay-at-home and shelter-in-place orders, and many businesses are bringing their employees back into the workplace.
Returning to Work
A staged return is the smartest approach. Continuing to allow some employees to work from home while you reopen your office space to small groups or cohorts of employees is a highly recommended approach.
Enabling those for whom worksite presence is most essential to return to work first will help your organization begin its regular business, but tiering the return will also give you time to put in palace extra protections.
For example, if you have an open floor plan, you cannot have a full contingent of workers return to their tightly packed cubicles.
If a small group returns, they can maintain proper social distances while your facilities management team decides how space may need to be reallocated, install physical barriers between workstations, and social distancing floor decals or other signage put in place. If you use a multi-tenant building or worksite, your organization will also need to coordinate with the landlord and other tenants to ensure that social distancing and sanitation measures are in places in any common spaces (elevators, lobbies, restrooms, etc.).
Even as you stage the return of your employees and make decisions about which cohorts will return at which point in time, you will also need to be aware of needs your employees may have that are specific to the COVID-19 situation. They may be in an at-risk health category, have a household member who is at-risk, or be unable to send their children to daycare/school. Providing work materials (computers, VPNs, etc.) for those employees as well as factoring those needs into decisions about which team members will be part of which cohorts is an important aspect of managing the workforce in transition.
Procedures for collecting information about employee needs and factoring it into your decisions can be established through Return to Work and Work from Home policies.
Return to Work Policies and Procedures
As you bring your employees back into the workplace, you need to ensure that you have clear policies and procedures in place. This will help you ensure that bringing your employees back into the workplace does not make you liable if they become exposed to COVID-19.
Advanced planning instead of on-the-spot decision making will provide the greatest protection for both employers and employees. We recommend having the following policies in place and, if you have policies that predate the pandemic, update them to ensure they address COVID-19 issues and changes to the law:
- Sick and Family Leave Policy
- Travel Policy
- Work from Home Policy
- Return to Work Policy
If your company waits for employees to proactively request to continue working from home, chances are that decisions will be made that set a poor precedent for your organization and fail to follow any uniform decision-making processes. This is likely to subject the organization to the risk of future discrimination claims as well as potentially risking the safety of your workforce.
Working through potential situations and making reasonable determinations about how to protect and care for your business, your employees, and your customers will grant greater physical protection to everyone, but it will also protect your organization against the risk imposed by a poorly planned and executed workforce return.
Employee Privacy and Health Information
By way of example, business as usual grants your employees a certain level of privacy in health information. However, an updated Return to Work Policy that takes into account new guidance from OSHA and other governmental authorities would work through the proper balancing test to determine that you can and should engage in some degree of prescreening, likely daily, as part of the return to work, but it would also involve guidance for how to protect the privacy of screened employees as much as possible.
OSHA has advised that in “workplaces where exposure to COVID-19 may occur, prompt identification and isolation of potentially infectious individuals is a critical first step in protecting workers, visitors, and others at the worksite.”
A Return to Work Policy would enable businesses to determine how they will prescreen, allocate appropriate resources to it, and ensure the privacy of their employee’s data when they do so.
Similarly, employees who are anxious about returning to work because of their health should all be treated similarly–supervisors making ad hoc decisions for their teams without guidance is likely to result in disparate treatment, allowing Employee A to stay home because her supervisor has previously witnessed her having an asthma attack while Employee’s B’s request is denied because his supervisor is demanding a doctor’s note documenting his medical condition.
A Return to Work Policy enables an organization to make decisions in a reasonable, even-handed way that follows regulatory guidance, thus ensuring the best protection for employees as well as employers. Documenting the policy protects organizations and employees by making procedures clear and giving them designated points of contact and procedures to request redress if the policy does somehow negatively impact them.
Return to Work Responsibly
You should not allow the anxiety caused by the economic fallout of COVID-19 to rush you into reopening with your full workforce in place until you have made a careful analysis of the situation as it impacts your business specifically.
What activities in your workplace might need to remain suspended, who should return to work when, how should the use of space change?
Are there regulations mandating specific changes because of your industry?
Implementing the proper policies and procedures will provide increased safety and peace of mind at the same time that it reduces your liability risks.
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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