Lee E. Tankle, Associate, Pepper Hamilton
Moses M. Tincher, Associate, Troutman Sanders
As governors begin to lift stay-at-home orders and communities around the country continue to progress through various phases of reopening, employers and employees alike are starting to plan for workers to return to offices and worksites. Although many Americans are adapting to the temporary “new normal,” COVID-19 remains a threat and must continue to be taken seriously. In preparation for returning employees, employers should be asking the following questions:
- Is the business permitted to reopen? As a threshold matter, employers must assess whether the latest federal, state, and local government mandates permit the employer to reopen in the jurisdictions where it operates. For example, a business may have offices in rural Montana as well as Center City Philadelphia — and government mandates vary widely in those two jurisdictions.
- Should the business reopen? During the course of this pandemic, many employers have found that some white-collar employees have been working effectively from home. Tech giants Google and Facebook already told their employees who are able to work remotely that they will not be expected back in the office until 2021. Other companies are rethinking their real estate presence more permanently.
- How will the business modify the workplace? Is the workplace set up in a manner that will allow employees to practice effective social distancing? Has the business considered a phased approach, where employees return on a gradual basis or during staggered worktimes to limit the number of employees present at a single location at any given time? Does the business utilize open-air cubicles, or do all employees have offices with doors? Does the business need to modify assembly lines to ensure greater distancing between employees? If a business shares common space (e.g., break rooms, gyms, and bathrooms) with other business tenants, what steps will the business take to protect its employees in those environments? Will employees be required to wear facemasks and other personal protective equipment at all times, and what steps will the company take to ensure proper sanitization of the workplace? In considering these questions, employers will need to be mindful of government orders and guidance from OSHA and the CDC on maintaining a safe workplace.
- How will the business monitor employees for COVID-19 symptoms? Many employers are planning to survey employees about COVID-19 symptoms and check employee temperatures on a daily basis. Some employers are also requiring employees to submit to COVID-19 tests before accessing the physical workspace. Antibody tests should not be administered because presently they do not accurately determine whether an individual can become infected with COVID-19. Employers will also need to consider whether nonexempt employees must be paid for time spent having symptoms checked. Keep in mind that some employees may be asymptomatic but reside in households with others who have COVID-19 and that employees with COVID-19 may not show an elevated temperature. Employers should also consider whether they wish to adopt a plan for contact tracing and, if such a plan is adopted, assign staff to handle notifications for suspected and known exposures. If employers implement these programs, they will need to do so in a way that protects employee privacy and safety. Employers also should consider whether and how to inform employees of an incident of exposure.
- How will the business address employees who cannot work or refuse to return to work? Under the federal OSH Act, employees may refuse to return to work only if they are in “imminent danger” — a standard that most employees will not be able to demonstrate. If an employee cannot return to work, the business should evaluate the employee’s reason and assess whether the employee is eligible for leave under the recently passed Families First Coronavirus Response Act (FFCRA), the FMLA, a union contract, applicable state/city leave laws, or the employer’s own policies. If an employee is able to work but is afraid to return to the workplace or prefers to work remotely because of child or elder care responsibilities, employers should consider whether they wish to provide additional paid or unpaid leave. Employers should also consider whether certain “high risk” employees (e.g., older employees and those with preexisting medical conditions) who request a reasonable accommodation can be accommodated through an extended leave of absence, continued remote work, or other accommodations. However, employers may not prohibit employees in these categories from returning to work if they choose to do so.
- How will the business address employees who return to work from furloughs, leaves, etc.? Recalling employees from furloughs or other unpaid leaves of absence should be treated as a “reverse layoff.” As such, if not all employees are recalled, employers should document legitimate nondiscriminatory and nonretaliatory reasons for recalling some employees over others. Employers generally should not replace furloughed employees with new employees (unless the furloughed employee voluntarily quits).
- Does the business need to update its teleworking and leave policies? If there is not already a teleworking policy in place, we strongly recommend that employers implement one. Employers should consider which employees may be able to continue working remotely so that others who need to be in the workplace can effectively social distance. Remote-working may also help employees who may be unable to return to the workplace on a regular work schedule due to child or elder care responsibilities. For employees who are continuing to work remotely, employers should consider providing these employees with reimbursement for their cellphone, internet, and other work-related expenses — especially in states like California that require such reimbursement.
- What will the business do if it is required to lay off employees? If terminating a large number of employees, a business must consider whether it has any obligations under the federal WARN Act or state “mini WARN” laws. Employers will want to ensure that decisions about terminations are made in such a way that there is not a disparate impact on a particular protected category. Employers may also want to consider implementing voluntary early retirement programs that comply with the Age Discrimination in Employment Act or providing severance to terminated employees in exchange for a release of all claims against the business.
- What will the business do if a “second wave” of COVID-19 necessitates further shutdowns? Given the uncertainty surrounding COVID-19, employers should anticipate the possibility of a second wave of stay-at-home/shelter-in-place orders being issued in the jurisdictions in which they operate as a result of spikes in COVID-19 positive tests. Businesses should be thinking now about how they will respond to employee infections/potential infections (including assisting with contact tracing and deep disinfecting of work areas) and how to quickly reimplement remote-working programs and policies. Employers should also implement policies requiring employees to inform the business if they are diagnosed with COVID-19/experiencing COVID-19 symptoms or have been exposed to another individual diagnosed with COVID-19/experiencing COVID-19 symptoms.
- Should the business require employees, visitors, or vendors to sign consent forms/waivers? While requiring a waiver to limit liability sounds appealing, there are some potential issues to consider. For example, employers may not require an employee to waive his or her right to raise a worker’s compensation claim. Further, asking an employee to sign a waiver may imply that the workplace is unsafe, which could violate the employer’s statutory obligations under the OSH Act. Nonetheless, waivers may be a viable option for avoiding or limiting claims from independent contractors, customers, or vendors. Employers may also consider alternatives to waivers, such as publishing notices that communicate the company’s reasonable actions to comply with health and safety guidelines.
Employers should work with their executive teams, human resources professionals, frontline managers, and legal counsel to answer the questions posed above and develop or revise policies to address the many issues brought about by returning to work in the era of COVID-19. The labor and employment attorneys of Pepper Hamilton and Troutman Sanders (Troutman Pepper, effective July 1) are pleased to have the opportunity to continue guiding employers around the country as their businesses prepare to reopen.