As many stay-at-home orders and other government restrictions are set to expire in the coming days or weeks, companies should be planning now for their employees to return to work. Developing sound policies and procedures for work in the midst of the on-going threat of COVID-19 is essential not only for maintaining the safety and morale of the workforce, but also for reducing the company’s exposure to liability. Below are ten tips for getting back to work in a responsible and productive manner. Of course, every business is different, and one size does not fit all, so it is important to seek out experienced employment law counsel as questions arise.
1. Develop a written return-to-work plan and follow it, but be flexible. Putting a plan in writing can make it easier to follow and also shows the company’s thoughtful consideration of workplace safety should claims arise. As even the best-written policies will fail if they are not followed, businesses should train management and other staff members tasked with implementing the return-to-work plan so that it is applied properly. Finally, be prepared to revise the plan if government authorities issue new mandates or guidance, or if certain aspects of the plan prove ineffective.
2. Maintain a safe work environment for returning employees. Follow applicable guidance from OSHA and the CDC for social distancing, sanitation, personal protective equipment (PPE), and other safety recommendations. Think about how workspaces might need to be rearranged or daily routines altered to comply with safety protocols. The DOL, OSHA and CDC, along with state and local agencies, are coming out with new and updated guidance on a regular basis, so check agency websites frequently or subscribe to their news alerts to stay informed. While the invisible nature of the coronavirus makes it particularly challenging to implement reliable safety measures, following the standards set out by these government agencies is a reasonable practice and will also help defend against potential claims.
3. Continue protocols for reporting illness at work, and encourage those who feel ill to stay home. Make sure the company has a plan in place to address employee infection or exposure to COVID-19.
4. Consider whether to implement COVID-19 testing or temperature checks for employees. The EEOC has issued guidance providing that administering COVID-19 tests and taking employee temperatures is allowable under the Americans with Disabilities Act (ADA) given the threat to safety posed by the COVID-19 pandemic. Before instituting a testing program, however, employers should consider the feasibility, cost, and accuracy of such tests, as they might not prove necessary or appropriate under a company’s particular circumstances. Also, any test results must be maintained in a confidential manner—for example, companies that take temperatures should do so in a way that minimizes the possibility of disclosing an employee’s symptoms to other co-workers.
5. Consider continuing telework for employees who can be productive working from home. If the company’s teleworking program necessitated by a stay-at-home order is working well for certain employees, evaluate whether on-site presence is essential to their role. If not, consider allowing telework to continue—at least on a temporary basis. With fewer employees on-site, it will be easier to institute—or continue—social distancing and sanitizing controls.
6. Consider making initial returns voluntary. A staged return process in which the initial phase is voluntary (where feasible, depending on the role and business needs) could help in implementing social distancing and sanitizing controls by reducing on-site headcount. Allowing such voluntary returns could also decrease anxiety on the part of employees who are more nervous about returning to work.
7. Think about staggering schedules to reduce daily headcount. Companies should also consider—where it makes sense for their business model—implementing staggered start and end times, as well as staggered meal times, to avoid employee crowding in common areas. In the short-term, continued use of video and teleconferencing in lieu of in-person meetings is also prudent.
8. Be mindful not to discriminate. Employers must not allow perceived limitations (such as age, pregnancy, etc.) or biases (e.g., national origin) to impact their return-to-work decisions or treatment of returning employees. The pandemic has given many employers an opportunity to reevaluate their staffing levels and business models. If payroll cost reductions are implemented, be careful when using salary level as a basis for decision-making, as doing so could lead to age-discrimination claims if older workers are disproportionately affected. As a reminder, the Age Discrimination in Employment Act (ADEA) covers employees 40 years of age and over. Also, remember the interactive process necessary to evaluate reasonable accommodations for disabled employees affected by COVID-19 protocols (e.g., an employee whose medical condition might not allow for wearing a mask that would otherwise be required by the company’s return-to-work plan).
9. Ensure compliance with government assistance programs related to COVID-19. If the company received a Paycheck Protection Program loan under the CARES Act, be sure to comply with workforce retention requirements to qualify for optimum loan forgiveness. This includes rehiring laid-off workers and restoring previously reduced compensation levels by June 30, 2020. Furthermore, if your company is covered by the paid leave provisions of the Families First Coronavirus Response Act (FFCRA), make sure to continue compliance with the employer obligations under that law.
10. Be mindful of different requirements for furloughed v. laid-off workers. Furloughed employees who have not been terminated from the company’s payroll system or benefit plans should be able to return to work with relative ease. By contrast, workers who were laid off (terminated) must complete new on-boarding paperwork if re-hired.
***Bonus Tip: Listen carefully to your employees. Employee feedback can be an important tool for helping a company know what is working and what is not as management implements its return-to-work plan. Employees who feel their concerns are being considered are also less likely to bring claims.
Stephanie A. Hood