As federal, state and local stay-at-home orders begin to roll back restrictions, more and more employers are faced with the prospect of bringing employees back to work in a dramatically different world than the one that they left only a couple of months ago. The challenge remains preventing and slowing the spread of COVID-19 while resuming business operations. The Centers for Disease Control and Prevention (CDC) recommends that businesses coordinate with state and local health officials and follow the federal guidelines for a phased approach to reopening. The CDC states that business operation decisions should be based on both the level of disease transmission in the community as well as the employer's readiness to protect the safety and health of its employees and customers.
Even though businesses may be eager to resume operations, they need to be strategic about which employees to bring back and when. The White House has recommended a phased approach to resuming business operations. In deciding which employees to bring back to work as part of the first phase, employers should consider which workers have unique or difficult-to-replace skill sets, the ability of employees to perform the job functions remotely, overall performance levels and seniority. Other criteria may be used. But any criteria used must be job-related or based on business necessity. For example, employers should not presume that older workers should not be brought back because of the higher risks they may face if exposed to COVID-19. Decisions about whether employees are fit to return to work should be made on an employee-by-employee basis. (Treatment of employees at high risk for severe complications of COVID-19 will be addressed in a later alert.)
Many employees may be concerned about returning to the worksite out of fear of contracting COVID-19. As a general matter, the mere fear of contracting COVID-19 is not a legitimate reason to refuse to return to work. Nevertheless, employers still may have to contend with employees who resist returning to work out of fear. This challenge may be addressed through frequent, clear and transparent communications with employees about all of the steps the employer is undertaking to create a safe workplace.
Employers should take into account the need for flexibility in requiring employees to return to work. For example, if schools and daycare facilities remain closed or limited, childcare responsibilities may make it difficult for some employees to return to work. Those employees may be entitled to expanded Family and Medical Leave Act (FMLA) leave under the Families First Coronavirus Response Act (FFCRA). Even if an employer is not covered by the FFCRA, or if an employee has exhausted his or her FFCRA leave benefits, the reality is that some employees will not be able to return to the worksite if they have childcare responsibilities.
An employer can lawfully discipline and discharge an employee who refuses to return to work because of childcare duties in cases where the employee has exhausted or is not entitled to FFCRA leave benefits. But there may be a significant cost to taking that path in terms of employee relations and the loss of a valuable employee. To allow for the need for flexibility, employers may consider a variety of solutions, including instituting or ramping up cross-training programs, flexible work schedules and telework.
Once businesses have determined when they will return employees to the workplace and which employees will return to work, they will need a plan for how to deal with the COVID-19 threat in the office.
Once employees return to the office, in addition to implementing social distancing and deep cleaning protocols, employers will need to strongly consider monitoring employees' health in a manner that would have been unheard of as recently as February. Toward this end, employers should establish a designated point person (or department) to whom employees should report issues related to COVID-19, such as the employee's exposure or potential exposure within or outside the workplace, the employee experiencing symptoms of COVID-19, or concerns about social distancing or other protocols not being followed. Ideally, this person or department would have a human resources or risk management function. Any health-related information provided by an employee must be treated as confidential medical information.
Employers will need to discuss creating and implementing daily screening protocols for employees. Employees may either self-screen and confirm the results daily to the employer or, ideally, undergo a screen before they are permitted to enter the workplace. A screen should consist of a temperature check and symptom check. For example, each day employees submit a form where they indicate whether they have been exhibiting known COVID-19 symptoms. The person to whom the forms are submitted would then administer a temperature check and record the temperature on the employee's form. The individual who collects the forms may be a managerial employee or, even better, a third-party medical professional (e.g., a nurse). Completed forms should be retained by the employer as confidential medical information and as evidence of some of the steps the employer has implemented to provide a safe workplace.
The logistics of an employee screening process may prove challenging. Large groups of employees hanging around waiting to be screened should be avoided. Staggering shifts is one possible solution. Another potential solution is to have multiple screening stations near different entrances to the worksite and to direct specific employees to come to specific entrances.
Employees also should be instructed on how to monitor themselves for COVID-19 symptoms (as updated by the CDC), to self-report symptoms or concerns and to stay home if they do not feel well.
The U.S. Equal Employment Opportunity Commission (EEOC) has designated COVID-19 as a "direct threat" to the safety of the workplace and has allowed that certain medical testing related to the disease is permissible. In the event that an employee tests positive with the coronavirus or otherwise falls ill while at work, the employer should interview the employee, if possible, to identify other company personnel with whom the employee may have had contact in the past several days. Those individuals should then be notified immediately of their possible exposure to the virus (without identifying the employee by name, gender or any other identifier). If appropriate, the employer should consider sending an email to the entire office/worksite exposed stating that the company has a confirmed case of COVID-19 (not identifying the employee by name, gender or any other descriptor). The company must also ascertain whether it is required to notify public health authorities about confirmed employee cases of COVID-19. Ideally, employers should have "exposure-response communications" prepared in advance to go to any potentially affected employees, customers and, if applicable, the media.
An employee who tests positive for COVID-19 or who has been exposed to COVID-19 and begins to experience symptoms at work should immediately be isolated from others in the workplace until he or she can leave. Employers should review their attendance, sick and leave policies for applicability to employees with COVID-19. Those policies should encourage employees who are sick to stay home.
Employees who have tested positive for COVID-19, been designated "presumptively positive" in the absence of a test or who have been directly exposed to others with COVID-19 – and who have been under home isolation/quarantine – can return to work under the following conditions, consistent with World Health Organization (WHO) and CDC guidelines:
If employee will not have a test to determine if he/she is still contagious, employee may leave home after these three things have happened:
1) Employee has had had no fever for at least 72 hours (that is, three full days of no fever without the use of medicine that reduces fevers), 2) other symptoms have improved (for example, when cough or shortness of breath have improved), and 3) at least seven days have passed since symptoms first appeared
If employee will be tested to determine if he/she is still contagious, employee can leave home after these three things have happened:
1) Employee no longer has a fever (without the use of medicine that reduces fevers), 2) other symptoms have improved (for example, when cough or shortness of breath have improved), and 3) employee has received two negative tests in a row, 24 hours apart. Employee's doctor will follow local health authority or CDC guidelines.
Employers should decide whether to require a medical certification or doctor's note for employees with lingering symptoms. While this is legally permissible, the CDC cautions against requiring certification from an already overtaxed healthcare system before allowing employees to return to work. It may be necessary to permit, at least temporarily, less stringent means of confirmation given the stress that healthcare providers are under (email, telehealth, etc.).
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.
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