United States

01 Oct 2020
What risk mitigation efforts should the prudent employer take before employees return to the workplace?

An employer contemplating resuming work on premises must consider all applicable federal, state, and local laws, regulations, orders, and guidance governing employers, employees, and the workplace. Consideration must be given to applicable equal employment opportunity laws, applicable occupational safety and health laws, wage and hour laws, and all other laws that may be at issue (e.g. sick leave laws). Many Covid-19 specific laws have been passed, and legal and medical guidance has been issued from the time the virus was declared a pandemic. In addition, as Covid-19 continues to loom large and even surge in the U.S., new laws, regulations, orders, and guidance can be expected. The prudent employer will not only consider the statutory laws, regulations, orders, and guidance, but also, it will review the common laws that may be implicated (e.g. invasion of privacy). Further, it will contemplate other factors, such as employee morale, public relations, and customer/client and shareholder expectations. Consult any existing collective bargaining agreements, and involve the union as dictated by the contract.

Tips:

  • Remember all obligations to provide a safe workplace.
  • Consider a risk assessment, identifying the potential hazards, deciding how likely an unfavourable occurrence is, determining the action that should be taken to eliminate or lessen the hazard or control the risk, and tasking a group or an individual person to oversee action plans.
  • For a more comprehensive return-to-office checklist, see “Covid-19: Best practice considerations for resuming work in an office setting” at https://www.nortonrosefulbright.com/en/knowledge/publications/e2b85076/covid19-best-practices-consideration-for-resuming-work-in-an-office-setting. 
  • Consider all applicable federal, state, and local laws, regulations, orders, and guidance, including but not limited to the guidance documents prepared by the Centers for Disease Control (CDC) and the Occupational Safety and Health Administration (OSHA) for particular work environments, such as the guidance for manufacturing workers and employers (see e.g. https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html; https://www.osha.gov/Publications/OSHA3990.pdf; and https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-manufacturing-workers-employers.html).
  • Don’t forget to consider guidance from other governmental agencies, such as the Equal Employment Opportunity Commission (EEOC). See e.g. https://www.eeoc.gov/coronavirus; see also https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.
  • If the company returns to work either in part or in full and a Covid-19 resurgence occurs, revisit the situation and determine if additional measures, including a temporary office closure, should transpire. Follow governmental action including new closures or “pauses.”
 
Who should be involved in the decisions to return to the workplace?

The company best knows its business, and return-to-work decisions will depend on a number of factors, including legal considerations, medical information, the industry involved, and the type of workplace. Involve key business leaders and stakeholders in the decision-making. But also, identify a team of professionals from various disciplines, including lawyers, human resources people, medical advisors, risk managers, occupational safety and health consultants, and industrial hygienists, in the return-to-work decisions.

Tips:

  • Use members of the team, as appropriate, to: develop plans and protocol for resuming work; monitor compliance; assess effectiveness; and make changes as necessary.
  • Consider whether public relations and media professionals should be involved.
  • With any resurgence of Covid-19, anticipate issues and be prepared to react. Be sure to involve the team, consulting appropriate professionals and considering new applicable laws, regulations, orders, and guidance to determine whether additional steps, including a temporary closure, are warranted.
 
What can the prudent employer do to ensure physical distancing in terms of the work space?

Study applicable laws, regulations, orders, and guidance for the relevant jurisdiction(s). Study floor plans, environmental matters (e.g. ventilation systems), and the specific needs of the workers to use the particular space. Identify whether the workspace needs to be reconfigured in any way, and take appropriate measures to do so. Remove or block access to furniture/areas as necessary to enhance physical distancing. Reconfigure open workspaces or limit access (e.g. decide that every other cubicle must remain unoccupied or change the configuration so that employees do not face each other). Consider seeking the advice of appropriate professionals (e.g. an industrial design consultant or architect).

Tips:

  • Consider modifications to the workspace, such as partitions, removing seats, etc.
  • Consider industry-specific requirements or best practices.
  • Consider marking off floor-space. Consider limiting access to rooms (e.g. two to a conference room, one to a restroom, etc.). Depending on the space at issue, take other measures as appropriate to achieve physical distancing where possible.
  • Consider environmental issues, such as ventilation.
  • Ascertain how best to modify the workspace and implement appropriate protections where physical distancing is not possible.
  • Discourage lingering and socializing in close proximity.
  • Encourage virtual meetings as opposed to in-person meetings.
  • Consider whether to use floor wardens.
  • Use appropriate signage.
  • Know and examine the rules of the building owner or manager (e.g. limitations on elevator use).
  • Train employees.
 
What can the prudent employer do to ensure physical distancing in temporal terms?

Physical distancing may be enhanced by temporal considerations, such as: a) staggering start and end times; b) employing shifts even if the company has not previously utilized shifts; and c) using flexible schedules, such as having employees work one week on the company premises and then two weeks at home. The prudent employer will provide information for the employees to understand the procedures to use for entering the building, using common spaces such as the main building lobby and elevator, and occupying the work premises.

Tips:

  • Determine whether the company will permit non-scheduled or after-hours work access.
  • Consider one-way access in the hallways; limit times that an employee may occupy any particular space.
  • Limit the number of people who can access a common space (e.g. a kitchen, a restroom, etc.) at one time.
  • Consider using technology tools, such as a wearable device that sounds an alarm if people are in close proximity for too long. But be sure the technology is reliable, and be certain to obtain legal advice, considering applicable issues such as privacy concerns.
  • Educate and train employees.
 
What protections should the prudent employer consider implementing, in addition to physical distancing?

Study the applicable laws, regulations, orders, and guidance for the relevant jurisdiction(s). Consider the best medical and scientific information available at the time. As of July 14, 2020, for non-health care workers who are not older (which the CDC defines as 65 or older) and/or who do not have a severe underlying medical health condition compromising the individual’s health, the CDC April 24, 2020 guidelines remain unchanged; they generally recommend that an individual: a) keep a physical distance (six feet) from others to avoid close contact and not gather in groups; b) wash hands frequently (use a hand-sanitizer if handwashing is not possible) and avoid touching one’s eyes, nose, and mouth; c) cover one’s mouth and nose with a face cloth when in public; d) cover one’s mouth and nose with a tissue when sneezing or coughing; e) monitor one’s health, being alert for symptoms and following applicable guidance if symptoms develop; and f) clean and disinfect frequently-touched surfaces. See https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html. This guidance is helpful to informing protections and protocol the employer should consider when returning employees to the workplace. In addition, the CDC has guidance on helping businesses and workplaces to plan, prepare and respond, including a decision tool and other information the employer may find useful. See https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/businesses-employers.html. In addition, it is wise to consider OSHA and related guidance. See e.g. https://www.osha.gov/Publications/OSHA3990.pdf.

Tips:

  • Recommendations and requirements vary by jurisdiction, industry, and the work environment.
  • Pay attention as certain jurisdictions may require personal protective equipment (PPE) and/or may require an employer to provide and/or pay for PPE and other protective wear and/or equipment.
  • In addition to any applicable law, it may be wise to follow medical guidance regarding PPE or other measures; ensure employees are aware of office protocol before coming to work.
  • Increase maintenance substantially. Make changes to the workspace as appropriate.
  • Educate and train employees, so they understand the company’s protocol and expectations regarding employee compliance.
 
How can an employer screen its employees, including temperature testing, COVID-19 testing and questioning? 

Determine whether the company will use screening procedures every day on which employees enter the premises. Recognize that this is a difficult area, with countervailing considerations. Examine applicable laws, regulations, orders, and legal and medical guidance on the proposed screening mechanism(s). Consider whether the company will use a questionnaire (e.g. do you have symptoms, have you been exposed to people with symptoms or Covid-19, have you traveled and if so, where, etc.). Consider if the company will use some mechanism for taking the temperature of employees; and, if the company determines after obtaining applicable legal and medical advice that temperatures will be taken, determine the equipment that will be used (e.g. individual thermometers, no-contact infrared or laser handheld thermometers, infra-red thermal scanning monitors, etc.). If the company is considering any testing, it is important to know the reliability of the testing and to recognize that there are requirements regarding testing administration. Both legal and medical advice should be obtained before instituting diagnostic testing for the virus or antibodies.

Tips:

  • Determine the protocol to be used for implementing any screening procedures and what to do with the information obtained, including what actions will be taken if the information is of concern and whether the information will be retained or just used for the day.
  • Make sure the company complies with all applicable laws and regulations in the relevant jurisdiction(s), including human rights laws, HIPAA, the Occupational Safety and Health (OSH) Act, and other employee privacy issues. Also consider following applicable orders and guidance, even if such does not have the full force and effect of law.
  • Balance the apparent need for the employee’s health and other private information against the issues inherent in gathering and using such information. Do a risk assessment.
  • Be sensitive and strive to protect the information obtained to the fullest extent possible.
  • If legal in the jurisdiction(s), consider obtaining the employee’s written consent to conduct the screening procedures and to use the information obtained, including the potential circumstances under which disclosure may occur.
 
What are the requirements regarding travel – either to or from the office or business travel?

As always, consider the applicable laws, regulations, orders, and guidance for the relevant jurisdiction(s). Additionally, assess the status of the Covid-19 presence in the jurisdictions involved in the travel. For travel to and from the office, it is likely difficult for the employer to regulate as employees take different forms of transportation (e.g. some employees drive, carpool, take mass transit, etc.). It is also likely not feasible to provide company-funded individualized transportation and/or parking, although some companies are choosing to pay for and/or provide individualized transportation. Therefore, the prudent employer will consider the risks of travel to and from work when determining whether to resume work on the company premises. The wise employer will also educate the employees about travel considerations and how to reduce exposure to Covid-19. Regarding business travel, determine whether to allow business travel (e.g. whether it is critical or necessary), under what circumstances business travel may transpire, and the protocol that must be followed (e.g. whether to require the employee to quarantine for a period of time upon returning from the business travel). 

Tips:

  • Examine the relevant legal and medical factors.
  • Encourage employees to consider other ways to fulfill business needs that do not involve travel (e.g. virtual meetings).
  • Establish appropriate protocol for necessary business travel.
  • Pay attention to the laws, regulations, orders, guidance, and applicable restrictions for the location from which and to which the employee is traveling. See e.g. https://travel.state.gov/content/travel/en/international-travel/before-you-go/travelers-with-special-considerations/schengen.html.
  • Regarding international travel, the U.S. government continues to advise against it. See https://travel.state.gov/content/travel/en/traveladvisories/ea/travel-advisory-alert-global-level-4-health-advisory-issue.html. Additionally, in light of the Covid-19 surge in certain areas of the U.S. as of late June and July 2020, certain foreign locations are prohibiting/restricting travel from the U.S. See e.g. https://www.nytimes.com/article/eu-travel-ban-explained-usa.html.
  • Regarding domestic travel, some locations are restricting travel and/or requiring a person traveling into the location to quarantine/self-isolate for a period of time. See e.g. https://coronavirus.health.ny.gov/home (New York’s requirement on quarantining if traveling from a state with significant Covid-19 spread); see also https://ballotpedia.org/Travel_restrictions_issued_by_states_in_response_to_the_coronavirus_(COVID-19)_pandemic,_2020#Map_of_states_that_issued_travel_restrictions.
 
How does the prudent employer decide which employees should return to the workplace?

Start by examining the applicable laws, regulations, orders, and guidance for the relevant jurisdiction(s) regarding what employees may return to the workplace and, conversely, what employees must be returned to the workplace when work on premises resumes. For example, with respect to what employees should not be returned to the workplace, as of July 14, 2020, some jurisdictions have paused the ability for some facilities to return to work. See e.g. https://azgovernor.gov/sites/default/files/eo_2020-43.pdf (in Arizona, indoor movie theaters, gyms, and certain other entities must pause operations until at least July 27, 2020); see also https://covid19.ca.gov/roadmap-counties/ (closing a number of operations in California effective July 13, 2020). Other jurisdictions have executive orders that provide that any employee who can work from home must continue to do so. See e.g. https://mn.gov/governor/assets/EO%2020-74%20Final_tcm1055-437539.pdf. Conversely, certain jurisdictions have requirements that an employer must return certain workers to the workplace, such San Francisco’s ordinance requiring an employer to rehire certain employees laid off because of Covid-19, when the employer seeks to fill the same or similar position formerly held by the laid-off worker. See e.g. https://www.nortonrosefulbright.com/en/knowledge/publications/f844299f/san-franciscos-back-to-work-ordinance?utm_source=vuture&utm_medium=email&utm_campaign=20200713_san%20francisco%20back%20to%20work%20legal%20update.

Even if there is no applicable law or document that has the force and effect of law, when determining who should return to work, the prudent employer will consider applicable orders and guidance from many sources, such as that from the EEOC, the DOL, OSHA, the CDC, the WHO, and state or local equivalents of federal agencies. See e.g. https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws. There may be competing considerations. For example, it may be necessary to allow someone with a legally-cognizable disability to work from home and/or even stay home without working if such would be a reasonable accommodation. See Part D (Reasonable Accommodation) of the EEOC’s Technical Assistance Question and Answers at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws. But be careful, because the EEOC takes the position that an employer should not prohibit an employee in a high-risk category as identified by the CDC (e.g. 65 or over or with certain medical conditions) from returning to work unless the employer can establish that the employee has a legally-cognizable disability that poses a “direct threat” to that employee’s health that cannot be eliminated or reduced by providing a reasonable accommodation, a burden that may likely be difficult to establish. See Parts C and G (particularly questions C5 and G4) of the EEOC’s Technical Assistance Question and Answers at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.

If a rolling return to work will transpire, it is advisable to assess the need for reopening, including what functions should resume on the workplace premises and what personnel are necessary for those functions to resume. The prudent employer will study the issue by looking at what job functions are the most important to resume on the workplace premises, rather than focusing on the return of specific people without regard to their job duties. When returning people to work, use legitimate, non-discriminatory, non-retaliatory reasons, and be as objective as possible. Consider appropriate factors such as specific skills, tenure, performance, and other legitimate business considerations.

Tips:

  • Consider equal-employment-opportunity and health-and-safety related issues.
  • Consider allowing employees to volunteer to return to work, rather than dictating which employees must return to work.
  • Assess the risks and consider claims that might arise depending on the factors used for determining which employees will return to work first.
  • Implementing different procedures for different individuals is generally not advisable. Indeed, absent obtaining legal advice that the company may or must use different procedures, the company should treat all similarly-situated employees the same. The prudent employer will obtain legal advice and, in addition to legal requirements, will also consider applicable guidance on the subject. See e.g. https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.
  • Use legitimate, non-discriminatory, non-retaliatory factors in making decisions.
  • Be fair. Be transparent. Be consistent. Be kind.
  • Consider whether to require certain C-Suite executives or other top management to work from home for coverage reasons (just as the company would not permit all C-Suite executives to travel on the same airplane).
 
What if an employee refuses to return to the workplace?

First, determine if the employee is reluctant or unwilling to return to work. If the employee is reluctant and there is no underlying reason that implicates a legal consideration, provide appropriate education and information about the company's measures, as that may satisfy the reluctant employee. Also, be kind and sensitive to the employee’s concerns. Additionally, when deciding what to do, consider collateral factors, such as staffing, employee morale, and the potential loss of valuable employees who may quit because they object to the company’s return-to-work procedures. Determine what steps the company may take (e.g. allowing the person to work from home for a period of time, giving the employee the opportunity to remain at home and determining whether that situation should be with or without pay, determining whether to require compliance with the return-to-work direction and what consequences will transpire if the employee does not return to work, etc.).

If the employee is unwilling to return to work and reason implicates a potential legal consideration, study and recognize the company’s applicable legal obligations and proceed accordingly (e.g. if the employee is on a legally-required leave that must continue despite the resumption of work on the company premises, if the employee has a relevant underlying medical condition that may legally require a reasonable accommodation, etc.). Obtain competent legal and medical advice when determining what is necessary to comply with the law and proceed accordingly.

It is important to recognize that there are circumstances where an employer must allow the employee to work from home (and, under certain circumstances, to pay the person if he/she cannot). First, if the applicable laws or legally-enforceable governor’s or mayoral order(s) for the location(s) in question provide, as some do, that “if you can work from home, you must work from home,” requiring an employee to return to work may be problematic. Second, Covid-19 high-risk individuals include people with medical conditions that often constitute disabilities, and, if so, depending on the facts and circumstances, the employer may need to make a reasonable accommodation (including possibly permitting work from home or a leave to stay home) under the Americans with Disabilities Act (ADA) and/or state and local equivalents. Also, as an aside, if the employer has allow remote work during the pandemic, it may be harder to establish that working on the employer’s premises is an “essential job function.” Third, if the individual has Covid-19, symptoms of Covid-19, or cares for someone under specific circumstances, there are a number of laws that could make requiring the employee to return to work illegal or at least potentially problematic. For example, if the Families First Coronavirus Response Act (FFCRA) applies to the employer, and the employee needs to quarantine because of a government order or advice of a health care provider or is experiencing symptoms and seeking a medical diagnosis (or has a bona fide need to care for an individual subject to quarantine or a child where the school or provider is closed for Covid-19 reasons), not only does the employer likely need to accommodate that, but also, the employer may have paid sick leave obligations under FFCRA. Additionally, some state and/or local leave laws (such as child care leave laws) may essentially prohibit the employer from requiring the employee to return to work. Fourth, even a facially neutral policy (e.g. everyone return to work) could have a discriminatory impact (e.g. on older workers), making it important to analyze legally. On the other hand, the employer should not employ a policy that prohibits a high-risk worker (because of age or medical condition) from returning to work unless that worker also has Covid-19 symptoms or the virus at the time, unless the employer can establish a “direct threat” situation. Fifth, the prudent employer will be cognizant that an employee objecting to returning may seek to assert a retaliation, wrongful termination, constructive discharge, and/or whistleblowing claim if he/she was adversely impacted (e.g. terminated, constructively discharged, etc.) for not returning to work where the employee engaged in protected activity (e.g. asserting a good faith belief of a legal violation relating to returning to work). Sixth, if there is a collective bargaining agreement, there could be issues relating to the employer’s obligations under that contract.

Tips:

  • If an employee is reluctant or refuses to return to work, an employer should consider five things. See https://www.nortonrosefulbright.com/en/knowledge/publications/f49ef7bb/5-things-to-consider-if-an-employee-refuses-to-return-to-work
  • Follow applicable federal, state, and local legal requirements in the relevant jurisdiction(s).
  • Consider applicable guidance. Even though an order or guidance may not have the force of law, it is prudent to consider the various federal, state, and local COVID-19 orders and/or guidance documents (including OSHA-related guidance) issued for various types of workplaces, as it may be argued that they set forth a de jure standard of care under, for example, OSHA’s general duty clause.
  • Use legitimate, non-discriminatory, non-retaliatory factors in determining how to respond.
  • Be fair. Be transparent. Be consistent in the company’s responses to similar situations.
  • Assess the risks and consider claims that might arise if an employee is dismissed for refusing to return.
  • If there is no legal impediment or other legitimate business consideration prohibiting the employer from requiring the employee to return to work, consider making the impact of non-compliance clear before requiring the employee to decide whether to return to work and implementing any adverse consequence for failure to return to work.
 
What other considerations should the prudent employer is thinking about at this time?

The prudent employer will examine the applicable laws, regulations, orders, and guidance in the relevant jurisdiction(s), considering special circumstances in the work environment (e.g. office, manufacturing, mining, etc.). See the tips below for additional considerations. For unionized employees, the company should study its obligations under the applicable collective bargaining agreement and proceed accordingly, including consulting a labor lawyer, as appropriate. Don’t forget obligations to and best practices concerning third parties such as clients/customers, vendors, building management, and other third parties.

Tips:

  • The prudent employer will examine the work environment (e.g. office, manufacturing, mining, etc.), the applicable laws, regulations, orders, and guidance, the jurisdiction(s) at issue, and the current state of Covid-19’s impact in the jurisdiction(s), as well as other items identified in this Guide and the best practices publication set forth above. The employer should seek the advice of appropriate disciplines, including but not limited to legal, human resources, medical, occupational safety and health, industrial hygiene, and heating, ventilation, and air conditioning consultants.
  • Pay attention to the ever-changing situation, and make appropriate adjustments. The current resurgence of Covid-19 in certain areas of the U.S. and the anticipated second wave of the virus warrant consideration and possible adjustments by the prudent employer to the then-present return-to-work plan. For example, San Francisco recently enacted a “Back to Work” emergency ordinance, set to expire September 2, 2020, requiring employers to rehire certain employees laid off as a result of the Covid-19 pandemic under certain circumstances. See https://www.globalworkplaceinsider.com/2020/07/us-california-san-francisco-employees-laid-off-due-to-covid-19-may-have-reemployment-rights-under-new-ordinance/. It can be anticipated that as Covid-19 continues to be present, certain jurisdictions within the U.S. will continue to enact certain provisions that may provide relief for employees.
  • The prudent employer will also pay attention to new laws that may not be Covid-19 specific but that may have implications for Covid-19 situations. See https://www.nortonrosefulbright.com/en/knowledge/publications/a5165ebf/comprehensive-new-york-state-paid-sick-leave-law-to-take-effect-soon (New York’s new mandatory paid sick leave law affecting all New York employers).
 
Contact

Barbara Jean D'Aquila
Partner
barbara.daquila@nortonrosefulbright.com
+1 612 321 2201