May 19, 2020

A Dedicated Pandemic Response Team Can Identify and Implement Policies Needed for a Safe Return

COVID-19 Return to Work Series: Part 5
Holland & Knight Alert
Dayna E. Underhill | Kara M. Ariail

Highlights

  • In order for employers to facilitate a safe return to the workplace during the COVID-19 pandemic, they must be prepared to address the issues that return will undoubtedly generate, including revisiting, revising and, in certain circumstances, drafting anew their pre-COVID-19 employment policies and practices.
  • Five key steps will assist employers in preparing to meet these challenges, including the creation of an empowered Pandemic Response Team at the outset to establish and manage a Return to Workplace Plan that will help companies identify, revise, draft and implement the policies needed in this new workplace.
  • This is part of a series of alerts by Holland & Knight's Labor, Employment and Benefits Group focusing on return-to-work issues during the COVID-19 pandemic.

As shelter-in-place orders enacted in response to COVID-19 are lifted throughout the country, companies have begun the process of returning their workforces from home back to the workplace. In order for employers to facilitate a safe return and be prepared to address the issues that return will undoubtedly generate, employers must now revisit, revise and, in certain circumstances, draft anew their pre-COVID-19 employment policies and practices. Creation and operationalization of an empowered Pandemic Response Team at the outset to establish a Return to Workplace Plan will assist in identifying, revising, drafting and implementing the policies needed in the new COVID-19 workplace, and will position the company to thoughtfully prepare to bring its employees back.

This Holland & Knight alert discusses five key steps in such a plan as well as provides a Return to Workplace Pandemic Response Checklist (see link under Step 5) that will assist employers in preparing to meet these challenges.

Step 1: Establish Your Pandemic Response Team

As employers plan their return to the workplace, a Pandemic Response Team should be created to drive, direct and communicate the employer's policy and practice efforts. Because the corporate world is not a one-size-fits-all proposition, an effectively designed Pandemic Response Team will depend on the entity's mission, size, structure and available resources. Team members may include an executive decision-maker as well as members of the employer's most significant groups, including legal (regulatory, employment and real estate issues), human resources (employee policies, practices and relations, benefits and training), information technology (telework, network administration and data security), facilities (landlord-tenant, environmental issues and workplace redesign) and public relations (internal and external). These Team members may be tasked with staying updated on a daily basis on federal, state and local government mandates and guidance that may result in repeated policy changes over time.

Employers with multiple worksites may also wish to consider the creation of location-based groups to support the Team's efforts at the local level. Depending on the employer's local footprint, these groups may include local legal counsel, management representatives and staff tasked with staying up to date on state and local mandates, implementing policies and practices, responding to employees' policy and practice-related questions and concerns, supervising workplace redesigns, and enforcing social distancing mandates and similar requirements.

Step 2: Establish Your Process for Policy Review, Revision and Implementation

Prior to undertaking its review, the Pandemic Response Team should agree on the role and assignment for each Team member, including specific policies or policy areas for review. The scope of the Team's review will depend on a number of relevant factors. Applicable federal, state and local law generally should be considered, particularly as related to the employer's total number of employees, industry and geographic locations. In addition, the Team may wish to take into account:

  • Industry-specific considerations, including the type of work being performed by employees. For example, professional services employers, retail employers and manufacturing employers will all have unique policy considerations for returning employees to work during the pandemic. Employers with workplaces that are frequently accessed by the public will have different considerations than private offices. Employers who assign employees to work on customer sites will have different considerations than employers who exercise sole control over their employees' worksites.
  • Management and reporting structure, including employee access to their supervisors and established chains of authority. Effective implementation of new and revised policies and operating procedures must take into account the degree of daily oversight and enforcement exercised by supervisory level employees, which may differ across departments or working locations.
  • Workforce considerations, including employee access to information and resources needed to comply with new policies and protocols, employee language barriers, whether employees are represented by a labor union, and whether employees are subject to employment contracts prescribing the terms and conditions of their employment.
  • Worksite considerations, including the layout of a physical workspace. Employers with worksites that can be easily reconfigured for social distancing will have different considerations than those where employees must work in close proximity.

Issues relating to workplace culture and corporate identity may also come into play. Some employers already utilize robust and expansive workplace policies. However, if introducing a number of new policies and protocols is contrary to an employer's culture or past practice, the Team may wish to consider how to implement changes in a way that anticipates and addresses the corresponding culture shock.

A timeline for completing the review and for implementing new and revised policies is useful to keep the Team on track. Pandemic conditions and related government guidance and regulations are constantly evolving. Accordingly, the Team should consider establishing a near-term deadline to ensure that the evaluation is completed and identified changes are implemented within a time frame when such changes are still relevant. Depending on the size of the Team and available resources, it may be necessary to prioritize certain areas for review over others. If constraints on time or resources require significant departure from the attached checklist, the Team should consider consulting with legal counsel to understand the potential corresponding risk of liability.

Step 3: Review Existing Policies, Practices and Protocols

The Pandemic Response Team should begin its review by identifying existing policies, practices and protocols that may require revision as employers return employees to the workplace. Policies, practices and protocols that most likely warrant revision include those relating to:

  • Benefits. The Team should ensure that existing policies address new and expanded benefits available to employees, including the expanded availability of unemployment benefits (although employers should continue the best practice of not advising on eligibility for such benefits). Revisions may also be needed to address the continuation of health insurance and other benefits in the event of leave or furlough.
  • Attendance/Leave. Employee attendance during the pandemic may be impacted by the employee's own health, the need to care for family members who are sick or children who do not have school or childcare, and disruptions in public transit. Policy and practice updates should take into account newly enacted leave laws such as the Families First Coronavirus Response Act. (See Holland & Knight's previous alert, "DOL Issues Initial Guidance and Employee Notice for Families First Coronavirus Response Act," March 25, 2020.) Policies should also be reviewed for consistency with public health guidance regarding when employees should stay home, and should allow for compliance with state and local government orders. The employer's unpaid leave policy may also need to be revised.
  • Anti-Discrimination. Existing anti-discrimination policies should be updated to address assumptions regarding COVID-19 and the countries where it originated. Policies should be revised to expressly prohibit discrimination and harassment on the basis of national origin, age, disability and perceived disability. Reasonable accommodation procedures should be reviewed, and the Team may want to implement similar procedures for evaluating continuing work from home and other accommodation requests from employees who identify as vulnerable to COVID-19 exposure under federal, state and local guidance.
  • Telework. Existing telework policies and protocols may need to be modified to accommodate and address expanded numbers of employees who may not have been approved for telework pre-pandemic. More extensive policy guidance may be needed for employees who have no experience with telework, and the realities of childcare and stay-at-home orders should be taken into account and addressed in such policies. (See Holland & Knight's previous alert, "Temporary Teleworking During COVID-19 Outbreak: Guidelines for U.S. Employers," March 16, 2020.)
  • Business Travel. As employees begin to travel again for business, policies may need to be revised to incorporate travel approval and reporting protocols to ensure that the employer can manage employee safety. Consider protocols for employees returning from business travel to minimize workplace exposure.
  • Employee Layoffs/Furloughs/Terminations. In anticipation of future furloughs, layoffs and terminations necessitated by the economic impact of the pandemic, expanded policies that explain the difference between furloughs and layoffs, as well as the related impact on employee benefits, may help address employee concerns and manage expectations. Explaining the work limitations for employees on furlough can also help manage employer compliance with wage and hour laws.

Typically, these policies and practices are addressed in an employer's personnel policies or employee handbook, but the Team also should give consideration to other employer documents such as hiring and onboarding materials, employee training materials and employment agreements. In those workplaces with union representation, the Team should ensure that any changes comply with the duty to bargain and meet collective bargaining-related obligations, as well as comply with shutdown and return-to-work agreements.

Step 4: Identify and Implement New Policies

In the course of its Step 3 review of existing policies, practices and protocols, the Pandemic Response Team will undoubtedly recognize the need to draft entirely new ones to address COVID-19's impact on the workplace. The following are key areas for consideration:

  • Social Distancing. Policies addressing social distancing requirements mandated or recommended at the federal, state and local level may be developed. This may include policies requiring employees to stay a minimum of 6 feet apart, to avoid scheduling or attending workplace gatherings of certain sizes, to avoid congregating in common areas (workrooms, copy centers, kitchen facilities) and recommended best practices for commuting.
  • Screening and Testing. A plan for conducting routine employee wellness checks prior to permitting employees to enter or stay in the workplace may be developed and communicated. The Centers for Disease Control and Prevention (CDC) and U.S. Equal Employment Opportunity Commission (EEOC) have advised that during the pandemic, employers are permitted to inquire into whether an employee exhibits COVID-19 symptoms and to take an employee's body temperature. Confidentiality protocols relating to employee health information obtained by an employer during the screening process should also be developed and implemented. (See Holland & Knight's previous alert, "Maintaining a Safe Workplace: Screening Employees as They Return to Work During a Pandemic," May 8, 2020.)
  • Enhanced Workplace Hygiene. New policies, protocols and practices for enhanced workplace hygiene requirements may be considered. This includes whether and when employees are required to utilize personal protective equipment (e.g., masks, gloves) as well as protocols reminding employees to frequently wash their hands with soap and water for at least 20 seconds, use hand sanitizer if soap and water is not readily available, avoid touching their eyes, nose and mouth, and whether it is necessary to stagger use of workplace bathroom facilities. (See Holland & Knight's previous alert, "New Employer Obligations in the Age of COVID-19: Safety Policies, PPE and Deep Cleaning," May 12, 2020.)
  • Action Plan for Employee Positive/Presumptive Positive COVID-19. Employers should develop, implement and communicate an action plan in the event that an employee in a specific workplace is reported as positive or presumptive positive for COVID-19. Such policies should address employee reporting requirements, quarantining, workplace deep cleaning, contract tracing and return-to-workplace protocols. (See Holland & Knight's previous alert, "Dealing with COVID-19 in the Workplace," May 15, 2020.)
  • Scheduling. In order to comply with state and local return to workplace mandates including social distancing requirements, many employers will need to address scheduling changes, including breaking the workforce into "teams" who return to the workplace in staggered phases, alternating teams into "telework" and "return to workplace" daily or weekly shifts, and reducing schedules for certain members of the workforce. When drafting scheduling policies and practices, employers should remain mindful of the impacts that such policies have related to unemployment or underemployment insurance availability, formal state workshare options and immigration status. (See Holland & Knight's previous alert, "Immigration Under COVID-19: Considerations for Employers with H-1B Visa Workers," May 14, 2020.)
  • Emergency Communications Plan. The rapidly changing COVID-19 landscape creates ongoing uncertainty for employers and employees. In an effort to make sure that employees are kept informed about the employer's COVID-19 management plan and safe, to the extent possible, when they are in the workplace, the Team should consider developing a written emergency communications plan that provides avenues for employers and employees to communicate on various issues, including methods for reporting and managing employee positive or presumptive positive COVID-19 diagnoses, workplace plans in the event of a local COVID-19 outbreak, and methods for employees to raise questions or concerns regarding workplace policies, practices and protocols.

In the process of finalizing revised and new policies for implementation, even though policies may require differences based on the nuances of state and local mandates, care should be taken to ensure that there are no material inconsistencies or conflicts between policies prepared by different Team members. Prior to implementing revised and new policies, any implications for other existing policies should be assessed. For example, a newly implemented telework policy may have implications for an employer's information security policy or business expense reimbursement procedure.

Step 5: Moving Forward

The clear and consistent communication of new and revised policies, processes and protocols is critical. One approach is for the Pandemic Response Team is to prepare a brief summary of material policy changes to provide to employees, along with a copy of, or link to, the updated policies. The use of a policy acknowledgment form or another process for employees to acknowledge their receipt and understanding of the new policies is useful.

Given the unprecedented nature of the pandemic and its impact on the workplace, employees will likely have questions about the application of new and revised policies. Designating a Team member to evaluate and respond to such questions (or to assist Human Resources in responding) can help ensure consistency in interpretation and enforcement. Having a Team member monitor employee questions and concerns can also help the Team identify those policies and practices that may require further adaptation or new protocols that may be needed.

In addition to monitoring employee response, the Team will also need to monitor emerging public health guidance and legislative developments. A designated Team member should review the websites for the CDC and local and state government offices on a daily basis to stay abreast of any changes in workplace guidance. The Team should also identify and monitor any industry-specific resources to ensure it is aware of best practices that may be unique to the employer's business. By complying with government-issued guidance and adhering to industry-specific best practices, employers can demonstrate they are taking reasonable steps to return to "normal" in a way that prioritizes employee health and safety.

Finally, employers need to be prepared for the possibility of restrictions tightening again in the event of a localized outbreak or increase in COVID-19 cases. Building flexibility into workplace practices and protocols to provide for quick adjustments as needed is ideal. The possibility of rapid changes with little notice should be clearly communicated to all employees to encourage their maximum cooperation and flexibility for the duration of the pandemic.

Now that employers have reviewed the five steps, they can use this Return to Workplace Pandemic Response Checklist to track their progress and help meet the considerable challenges of bringing employees back to the workplace.

About This Series

States are easing or phasing out their stay-at-home orders. Nonessential businesses will begin to reopen and their employees will return to work. Many essential businesses that have continued to operate likely will see an increase in the number of employees returning to the workplace. But concerns about transmission of COVID-19 remain. Many states have or can be expected to impose significant obligations on employers to ensure that their workplaces remain safe and that the risk of COVID-19 transmission is minimized. This laudable objective presents many challenges to all employers.

As shelter-in-place orders are being lifted and employers are permitted to reopen their workspaces, they will need to do so with caution while wading through a patchwork of local, state and federal requirements and understanding what guidance or recommendations are mandatory.

To assist companies in their efforts, Holland & Knight has created a series of alerts focused on return-to-work issues. In addition, as state and local governments continue to issue new orders for May, Holland & Knight provides updated summaries of state and local orders to help companies keep track of regulations and requirements that are essential to all businesses.

Previous alerts in our COVID-19 Return to Work Series can be viewed below.

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DISCLAIMER: Please note that the situation surrounding COVID-19 is evolving and that the subject matter discussed in these publications may change on a daily basis. Please contact your responsible Holland & Knight lawyer or the authors of this alert for timely advice.


Information contained in this alert 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. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.


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