United States

15 Mar 2021
What risk mitigation efforts should the prudent employer take before employees return to the workplace?

A little over a year into the COVID-19 pandemic and with governmental and travel restrictions beginning to loosen somewhat, together with the rollout of a vaccination program, many employers are contemplating returning employees to the workplace. And those who have already done so or continued working during the pandemic as an essential business are making ongoing judgments about how to keep their employees safe. All employers must ask themselves these basic questions: Can my employees return to the workplace? Should my employees return to the workplace? What are my risks and how can I minimize those risks in the workplace?

Can my employees (legally) return to the workplace?

The first and mandatory question is whether local or state laws or rules bar an employer from bringing employees back to the workplace. Start by examining the applicable laws, regulations, orders, and guidance for the relevant jurisdiction(s) your business operates in. For example, while most businesses are now allowed to be open in some capacity, several states still prohibit bars and similar establishments from opening for inside service.

Should my employees return to the workplace?

Assuming an employer is not legally barred from bringing employees back to the workplace, the next (and more difficult) question is whether it is prudent to do so. 

The company best knows its business, and return-to-work decisions will depend on a number of factors, including the physical layout of the facility(ies), the type of industry involved, the type of workplace, the degree of exposure to the public, and similar parameters. If a business has been operating reasonably well remotely until now, that may weigh in favor of a slower approach to re-opening.

The assessment of whether the employer should bring employees back will naturally lead into questions of how to do so safely. Of course, employers already have an obligation to provide a safe workplace environment under OSHA’s General Duty Clause, which mandates that employers provide a safe and healthful workplace that is free from recognized hazards that can cause serious physical harm or death. (Indeed, while OSHA has not yet issued specific standard for COVID-19, a number of states have enacted such standards. OSHA has also issued COVID-19 guidance, see here). There are also 22 states or territories who have OSHA approved state plans that may have to be considered.

As reflected in both the CDC and OSHA guidance, there are several proven and important lines of defense, namely: (1) Keep sick employees out of the workplace; (2) require personal protective equipment and safe behaviors; (3) upgrade HVAC filtration and adequate ventilation; (4) require physical, spatial distancing of employees; and (5) provide temporal distancing (i.e., staggered shifts or staffing).

Tips:

  • Employers should conduct an individualized risk assessment of the workplace, identifying the potential hazards associated with the ingress and egress of the facility, the number and size of work shifts, size and layout of working areas in comparison to number of employees who will be present, width of hallways, size of common areas including lunch rooms and the number and size of bathrooms, deciding how likely an employee could contract COVID or that the disease could spread, determining the action that should be taken to eliminate or lessen the hazard or control the risk, and tasking a group or individual to oversee action plans.

  • Consider all applicable guidance, including but not limited to the guidance documents prepared by the Centers for Disease Control (CDC) and the federal and state Occupational Safety and Health Administrations (OSHA) for work environments. See here; and here). Check for relevant guidance for particular work environments, such as for manufacturing workers and employers. See, e.g. here).

  • Don’t forget to consider guidance from other governmental agencies, such as the Equal Employment Opportunity Commission (EEOC). See, e.g. here.

If the company returns to work either in part or in full and a COVID-19 resurgence occurs, revisit the situation immediately 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?

If the company returns to work either in part or in full and a COVID-19 resurgence occurs, revisit the situation immediately and determine if additional measures, including a temporary office closure, should transpire. Follow governmental action including new closures or “pauses.”

 
What can the prudent employer do to ensure physical distancing in terms of the work space?

One of the ways for an employer to bring employees back to the work place safely is to require physical and spatial distancing of employees. This means that an employer should study floor plans 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. Employers should also 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); and consider seeking the advice of appropriate professionals (e.g. an industrial design consultant or architect).

Tips:

  • Consider modifications to the workspace, such as partitions and removing seats.
  • 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.
  • 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).
 
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.

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.
 
What protections should the prudent employer consider implementing, in addition to physical distancing?

As stated above in determining whether employees can return to the workplace safely, there are several proven and important lines of defense, including requiring personal protective equipment and safe behaviors; and upgrading HVAC filtration and adequate ventilation.

Personal Protective Equipment and safe behaviors

CDC and OSHA guidance continue to recommend (in addition to getting a vaccine): (a) wear a well-fitting mask over the nose and mouth, secured under the chin; (b) stay 6 feet away from others; (c) avoid crowds and poorly ventilated spaces; (d) wash hands often, for at least 20 seconds; (e) cover coughs and sneezes; (f) clean and disinfect frequently-touched surfaces; and (g) monitor health daily. See here; and here. Employers should make these recommendations company policy, and then educate and train employees to follow these crucial safety measures.

HVAC filtration and ventilation

Both the CDC and OSHA strongly recommend improving ventilation to combat COVID-19. See here; and here. Employers should consult or hire HVAC specialists to comply with this guidance, including by making adjustments such as:

  • Increase outdoor air ventilation (using caution in highly polluted areas).
  • Ensure ventilation systems operate properly and provide acceptable indoor air quality for the current occupancy level for each space.
  • Increase airflow to occupied spaces when possible.
  • Turn off any demand-controlled ventilation (DCV) controls that reduce air supply based on occupancy or temperature during occupied hours. In homes and buildings where the HVAC fan operation can be controlled at the thermostat, set the fan to the “on” position instead of “auto,” which will operate the fan continuously, even when heating or air-conditioning is not required.
  • Improve central air filtration by increasing air filtration to as high as possible without significantly reducing design airflow, inspect filter housing and racks to ensure appropriate filter fit and check for ways to minimize filter bypass, and check filters to ensure they are within their service life and appropriately installed.
  • Consider portable high-efficiency particulate air (HEPA) fan/filtration systems to help enhance air cleaning.
  • Consider using ultraviolet germicidal irradiation (UVGI) as a supplement to help inactivate SARS-CoV-2, especially if options for increasing room ventilation are limited.
 
How can an employer screen its employees, including temperature testing, COVID-19 testing and questioning? 

In addition to requiring employees to get vaccinated (see below), employers can take several measure to reduce the risk that infected employees will enter the workplace. 

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.
  • Use and enforce a daily standard questionnaire or personal health review (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.).
  • Require employees who are positive for COVID-19 or exhibiting symptoms to remain out of the workplace for the requisite period as recommended by the CDC and local authorities.
  • Change the culture about taking sick leave.  While there has long been a spirited debate about whether a workplace culture that incentivizes employees to work sick is actually counter-productive, COVID-19 has arguably tipped the scales in favor of maintaining a culture that encourages employees to take sick leave and stay home.
  • Consider providing paid sick leave if you do not already.  Although the FFCRA’s mandatory paid leave requirement has not been renewed, the Biden administration’s stimulus act provides tax credits for employers that grant paid sick and family leave.
  • Determine whether contact tracing will be employed to trace the people with whom the potentially ill employee may have been in contact during the workday, and determine what to do with the information obtained (regarding contact tracing in the workplace, tracing by contacted people v. location tracing is likely preferable).
  • 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.). However, be aware that COVID-19 patients are frequently asymptomatic while they are infectious, and therefore temperature screenings are at best only a supplemental safety measure.
  • Ensure management and HR are aware of obligations to record situations with COVID-positive employees (e.g. on an OSHA 300 log) and to make a report to authorities such as OSHA (e.g. when there is hospitalization or death).
  • 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.

Don’t: Require antibody testing; it is contrary to EEOC guidance and is therefore not recommended.

 
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, employers should 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. here.
  • Regarding international travel, the U.S. government continues to generally advise against it.
  • Additionally, in light of the prior COVID-19 surges in certain areas of the U.S., certain foreign locations had been prohibiting/restricting travel from the U.S. See e.g. here; and here.
  • 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. New York’s requirement on quarantining if traveling from a non-contiguous state; see also Travel restrictions by State.
 
How does the prudent employer decide which employees should return to the workplace?

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. With San Francisco’s Back to Work Ordinance now in effect, employees laid-off due to COVID-19 may have right to reemployment.

Even if there is no applicable law or document that has the force and effect of law, when determining who should return to work, employers will consider applicable orders and guidance from many sources, such as that from the EEOC, DOL, OSHA, CDC, and state or local equivalents of federal agencies. See, e.g. here. 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. 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.

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. Employers should 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. Employers should obtain legal advice and, in addition to legal requirements, will also consider applicable guidance on the subject.
  • Use legitimate, non-discriminatory, non-retaliatory factors in making decisions.
  • Be fair. Be transparent. Be consistent. Be empathetic.
  • 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). 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. (And indeed, most employers will want such employees to remain outside of the workplace). 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, employer should 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:

  • Consider applicable guidance, particularly from the EEOC.
  • Use legitimate, non-discriminatory, non-retaliatory factors in determining how to respond.
  • Be fair. Be transparent. Most importantly, 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 be 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 had enacted a “Back to Work” emergency ordinance 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).

 
What are the safety and employment issues for consideration regarding the vaccines?

There is no single authority that can definitively answer whether employers can, or cannot, mandate vaccination, and the answer may vary from one state to the next. That said, the EEOC’s guidance is clear that employers can mandate that employees receive the COVID-19 vaccine, and doing so does not violate federal law, at least as interpreted by the EEOC. The EEOC provides the following specifics on how to mandate vaccines in compliance with federal workplace civil rights laws:

Employees who refuse to get vaccinated can be excluded from the workplace.

  • Employers can require proof of vaccination. The employer should warn employees not to disclose other medical information when providing proof, and should not ask employees why they have not been vaccinated yet.
  • If the employee asserts that a disability prevents them from receiving the vaccine, the employer must engage in the ADA’s interactive process, and determine (1) whether a disability in fact precludes receiving the vaccine, and (2) whether a reasonable accommodation is possible. If the employee’s disability does prevent her from receiving the vaccine, and there is no way to provide a reasonable accommodation (absent undue hardship), then the employer should make an individualized assessment of whether the unvaccinated employee poses a “direct threat” to the workplace health and safety of herself or others. This is based on four factors: (a) the duration of the risk; (b) the nature and severity of the potential harm; (c) the likelihood that the potential harm will occur; and (d) the imminence of the potential harm. If there is a direct threat that cannot be reduced to an acceptable level, then the employer can exclude the disabled employee from the workplace, but should not automatically terminate the worker, and should look at further accommodations such as working remotely.
  • Similarly, if the employee claims that a religious belief prevents him from receiving the vaccine, the EEOC advises that employers must provide a reasonable accommodation unless it would pose an  undue hardship under Title VII of the Civil Rights Act. The EEOC further explains that employers should normally give employees the benefit of the doubt, and assume that their religious belief is sincere; however, the employer make request additional information if it has an objective basis for questioning either the nature of the religious belief or its sincerity. If the employer concludes that it cannot reasonably accommodate the religious employee, then it is lawful to exclude the employee from the workplace, but again, the employer should not automatically terminate the employee. 

The EEOC’s guidance also addresses employer-administered vaccination programs. These are permissible under federal law, but there are several pitfalls, and on balance they are not recommended for most employers. Instead, most employers will prefer to facilitate employees obtaining the vaccine from local government and healthcare providers.   

If the employer does opt to administer the vaccine itself, the EEOC recommends the following:

  • Do not require employees to receive the vaccine from the employer, instead give employees the option to receive the vaccine elsewhere if they prefer.
  • Limit pre-screening questions to avoid eliciting disability-related information: only ask information that is job-related and consistent with the business necessity of administering the vaccine, and do not ask questions that call for genetic information. Questions that go beyond what is strictly necessary could constitute a medical examination that could violate employees’ ADA and/or Genetic Information Nondiscrimination Act (GINA) rights

Finally, OSHA recently clarified that vaccines are not mandatory as a matter of workplace safety, but it encourages employers to make vaccines available to employees at no cost. It also recommends applying the same physical safety protocols to both vaccinated and unvaccinated employees. For example, vaccinated employees should still wear masks and maintain physical distance from other.

 
What issues arise in introducing Hybrid working?
 
Contact

Mario A. Barrera
Partner
mario.barrera@nortonrosefulbright.com 
+1 210 270 7125

James Hughes 
Senior Counsel 
james.hughes@nortonrosefulbright.com
+1 512 536 5228