“YES, WE’RE OPEN”: GUIDANCE FOR EMPLOYERS ON GETTING BACK TO BUSINESS SAFELY
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Kathleen M. Laubenstein
April 16, 2020
While the impact of COVID-19 continues to be felt across the globe, the impetus to get people back to work increases. For now, in most states, only those who are deemed “essential” are at work. Soon, hopefully, non-essential businesses will start to re-open and employers will have to figure out how to bring back their workforce in the safest manner possible for their personnel and for their customers, vendors, and the public-at-large.
The Centers for Disease Control and Prevention (CDC), the Occupational Health and Safety Administration (OSHA), and other federal and state agencies have released extensive guidance on mitigating the spread of COVID-19 in the workplace. These resources are invaluable and offer industry-specific guidance for many industries that will face unique challenges in this regard. Below are some general pointers for employers and business owners preparing to open their doors in the coming months. For some employers, adoption of some recommendations permanently may make sense to promote the health and well-being of employees even after this pandemic is over.
- Follow local guidance. Some states and local governments may impose conditions on businesses as they reopen, such as limited hours of operation, restrictions on the number of people in any facility at a specific time, and other constraints. Consider using resources such as the local chamber of commerce or industry and trade organizations as sources of information, in addition to the government sites.
- Don’t cut corners – clean them. It is understandable that business owners will want to get back open as quickly as possible, but it makes sense to ensure that your worksite is ready to keep your employees, customers, and visitors safe for the long haul.
- Give the office a good cleaning before you reopen. While it may not be necessary to prevent the spread of the virus, it will go a long way to making employees feel better about returning to work.
- Whatever your pre-pandemic daily cleaning process was, evaluate it and see whether it needs to be improved. Cleaning is no longer an end-of-day event; public areas and common surfaces may need to be wiped down multiple times a day, depending upon the nature of the business and the amount of foot traffic.
- If possible, supply employees with hand sanitizer, disinfectant wipes, masks, and other personal care items. Notify employees that hygiene is important and give them additional time or breaks, if needed, to wash their hands. Consider putting hand sanitizer in public areas for regular use.
- Do not skimp on necessary safety measures. Employees have always had the ability to report workplace safety concerns but, in light of the heightened safety concerns surrounding a highly contagious virus, employees may be more likely to report inadequate sanitation practices or lack of personal protective equipment to OSHA. Engage with employees and listen to reasonable requests and concerns.
- If you are mandating or encouraging employees to change clothing or put on more extensive personal protective gear than just gloves or a mask before starting a shift, follow state or local law as it relates to compensation of “donning and doffing” time.
- Go the distance. The recommendations regarding social distancing should be implemented in the workplace as much as possible.
- Assess whether the office can function with some portion of the staff regularly working remotely. Many studies have confirmed what employees have long asserted – employees can be just as productive, if not more so, when they work from home. The fewer people in the office, the fewer vectors.
- Invest in technology that increases your staff’s ability to minimize/avoid in-person meetings. People are increasingly comfortable with virtual meetings, and minimizing in-person contact makes sense even as businesses are physically opening their doors.
- To the extent your employees continue to have in-person meetings with customers and each other, schedule appointments with gaps of time in between, rather than back-to-back. It both minimizes the number of people in the physical space at any one time and it also gives people a chance to wash their hands and disinfect their desks before the next meeting takes place.
- In an office environment, move desks, cubicles, and break room tables as far away from each other as practicable. If you have a waiting area, consider rearranging the chairs to ensure that people are not seated right next to each other while they wait. Consider similar modifications, to the degree practicable, in retail, manufacturing, restaurants, and other worksites.
- Sharing is no longer caring. Every employer should review the worksite to assess areas for potential sources of contamination and determine whether the risks can be minimized or even eliminated.
- Consider limiting or eliminating the types of communal eating that are the hallmark of many office environments. Candy bowls, trays of homemade cookies, and pretzel jars may be morale boosters but they are also infection boosters.
- For shared equipment (e.g., the reception desk staffed by different workers during the day, communal copiers, the stapler next to the communal copier), institute policies requiring employees to wipe down the equipment after each individual use.
- Review your worksite for idiosyncratic instances of shared or common equipment. Instead of supply cabinets that any employee can rummage in, consider a single point of contact to distribute supplies as needed. Employees can be directed to use a specific coffee room or specific conference space.
- All returning personnel must be healthy. It is imperative to take precautions against having ill employees being present in the workplace during this precarious period, in which the risk of spread of the coronavirus remains high.
- Be overly cautious on whom you allow in your workplace. If an employee has been advised to isolate or meets the CDC’s guidelines for isolation, even if that employee is asymptomatic, that employee must either work from home or take time off until cleared to return to work. If altruistic considerations do not matter to you, consider the risk of legal liability. Walmart was recently sued in Illinois after a worker died from complications of COVID-19. His family alleged that local managers failed to notify personnel about several sick employees. A nursing home in Tennessee is facing similar claims in a lawsuit brought on behalf of former employees and residents.
- Under recently revised guidance from the EEOC, employers may take employee’s temperature before permitting employees to come to work but the process may be more onerous than its value, in light of the safety precautions and technology required, as well as the fact that an elevated temperature is not the only indication of COVID-19. Instead, consider asking each employee to take his/her own temperature at home and to assess that factor, along with other factors (other symptoms, known exposure, etc.), to determine whether the employee is able to come into work. If an employee is concerned that he/she has COVID-19, the employee should consult a healthcare professional immediately and should not come to work until the employee has been cleared.by a healthcare professional or has satisfied the then-current CDC guidance on when an employee is able to return to work. This guidance typically dictates being fever free and with improved respiratory symptoms for varied periods of time, depending upon whether the employee has been able to obtain a COVID-19 diagnostic test that is negative for the virus.
- Reiterate to employees that the company’s expectation is that sick employees will stay home and that employees will not be penalized for using their allotted sick time. Make sure all employees have information about the company’s current sick leave policies.
- If an employee becomes sick during the day, send the employee home immediately. Disinfect any areas in which the employee worked during the day and any common areas in which the employee spent time.
- Employees should be instructed to self-report any positive COVID-19 test immediately and to provide information about when that employee began to experience symptoms. If an employee tests positive for COVID-19, other persons who had close contact with that employee should be notified that they have potentially been exposed. The identity of the employee should not be disclosed, and the employer should be as careful as possible when providing this notice to minimize the risk that the infected employee will be identified. Close contact includes anyone who was within six feet of the infected employee while the employee had symptoms and in the two days prior to the employee experiencing symptoms.
- OSHA should be notified if an employee has had a confirmed case of COVID-19 and there is a likelihood of possible work-related exposure. OSHA has stressed that it will not be stringent in enforcing its reporting requirements at this time, encouraging employers to focus on enhanced hygiene and mitigation measures, but clear cases of work-related transmissions remain reportable incidents.
- Also, several states are considering changes to the definition of “occupational disease” for purposes of determining whether COVID-19 is compensable under workers’ compensation laws. Most of the proposed expanded definitions would cover only certain categories of employees (principally health care workers and first responders), but these definitions may change over time and as COVID-19 increasingly becomes an occupational hazard.
- Some states have expanded the sick leave requirements even beyond the Families First Coronavirus Response Act and the Coronavirus Aid, Relief, and Economic Security Act. Employers should check to make sure they are in compliance with their applicable state laws, municipal requirements, and internal policies.