Although states are at very different places with COVID-19 outbreaks, many states plan to begin lifting shutdown and stay-at-home orders in the next few weeks.  Even for states that will remain shut down for significantly longer, businesses should begin to think about what returning to work will look like and how to keep employees safe while we continue to live with COVID-19 in our communities.

OSHA has provided initial guidance on what workplaces should look like when people begin to return.  https://www.osha.gov/Publications/OSHA3990.pdf.  While this guidance is helpful – and may be supplemented with additional guidance soon – OSHA is also taking the position that employers are responsible for protecting their employees from COVID-19 exposure at work.  You should consider the unique features of your workplace, workforce, and business in developing the best plan for your business and your employees.

We recommend the following approach when planning your reopening:

Extend Remote Work

The CDC recommends that all employees who can work remotely continue to do so, even after the shutdowns are lifted.  We encourage all businesses to carefully consider whether certain employees actually need to return to the office or can continue to work remotely.  Remote work helps reduce the number of people using public transportation as well as shared office spaces such as elevators, bathrooms, hallways, and breakrooms.  Ultimately, the fewer people using the office, the fewer opportunities for COVID-19 to spread between individuals.

Staggered or Alternative Work Schedules

Employers can also consider staggered or alternative work schedules, such as alternating who comes into the physical workplace versus works remotely each day, or staggering hourly schedules.  These types of schedules can limit the number of people who are in the workplace at a given time, which will allow more social distancing throughout the workplace.

Rethink Office Space

Businesses who truly need their employees to return to their physical workplaces should think about how they can reconfigure their workspaces to maximize social distancing.  For example,

  • Desks in open floorplan offices could be spread farther apart.
  • Plexiglass barriers could be installed to protect front desk workers.
  • Use of common office equipment such as photocopiers could be limited to a small number of administrative employees.
  • Breakrooms and common kitchens could be closed.

Employers should think creatively about the unique challenges in their particular workplace and how to make changes to encourage social distancing and reduce the spread of COVID-19.  And again, rethinking office space will be easier if only a small portion of workers are coming into the office while others continue to work remotely.

Encourage Personal Hygiene and Infection Prevention Measures

Employees in the workplace should take basic personal hygiene and infection prevention measures to limit person-to-person spread.  Employers can take the following steps to encourage these practices:

  • Encourage frequent and through hand washing. If soap and running water are not immediately available, provide alcohol-based hand sanitizer throughout the workplace.
  • Encourage respiratory etiquette, including covering coughs and sneezes.
  • Provide tissues and trash receptacles throughout the workplace.
  • Provide masks and disposable gloves to employees who need them.

Limit In-Person Meetings and Conferences

Limit face-to-face meetings, especially in closed conference rooms with multiple people present.  Continue to conduct meetings on the phone or via videoconferencing whenever possible.

The CDC recommends postponing or cancelling any large conferences during this time.

Increase Sanitation and Cleaning

The CDC recommends that businesses increase their sanitation and cleaning efforts at the workplace.  This can include frequently disinfecting surfaces, doorknobs, light switches, and office equipment.  To the extent possible, employees should not share equipment such as phones, keyboards, or tools.

Masks

Business will be expected to follow state and federal guidelines on the use of masks.  Although masks are not currently required in most states, they are highly recommended in situations where social distancing is not possible.  If the CDC or your state government institutes a mask requirement, employees will be required to follow those requirements in the workplace as well.

According to the EEOC, employers can also adopt their own mask policies beyond state requirements to reduce the spread of COVID-19.

Actively Encourage Sick Employees or Those Who Have Been Exposed to Stay Home

All employers should actively encourage any employee who is experiencing symptoms to stay home.  Employers should not require employees to present a positive COVID-19 test or doctor’s note to take sick leave due to possible COVID-19 symptoms.

Similarly, employees should be encouraged to disclose to the appropriate person when a person in their household tests positive or when they have had direct contact with a person who tested positive.  That employee must then be quarantined for a minimum of 14 days.  Offering sufficient sick leave will ensure that employees who have been exposed are able to stay home for the entire quarantine without pressure to return to work, risking exposure for their coworkers.

The Families First Coronavirus Relief Act (“FFCRA”) requires employers with fewer than 500 employees to provide employees with at least 10 days of additional sick leave – on top of existing state requirements – to address COVID-19 illnesses and exposure.  Employers can recover the costs of this sick leave through refundable payroll tax credits.

Regardless of whether your business falls under the FFCRA, you should consider extending employees as much sick leave as they need to ensure that people with COVID-19 symptoms do not come to work.

Symptom Checking

The EEOC has issued guidance on how employers can check for symptoms of COVID-19 without violating the Americans with Disabilities Act (“ADA”).  Keep in mind that all employee health information should be treated as confidential health information and stored separately from personnel files.

According to the EEOC, employers can take the following measures:

  • Asking employees if they are experiencing COVID-19 symptoms.
  • Taking employees’ temperatures.
  • Requiring employees to take COVID-19 tests. At this time, it is unlikely that most employers will have access to these tests, but if testing becomes more widely available, the EEOC is taking the position that employers can require that employees take COVID-19 tests to be cleared to work.
  • Requiring employees who express symptoms of COVID-19 to leave work or stay home.
  • Requiring a doctor’s note to return to work. However, the EEOC expressly states that physician’s offices may be too busy to provide notes at this time, and employers may need to drop this requirement for practical reasons.

However, we also know that people may be contagious without experiencing any symptoms.  Although symptom checks may help reduce the spread of COVID-19, ultimately businesses will need to take as many precautions as possible to limit the spread even among asymptomatic people.

Disabilities and COVID-19

Individuals with certain pre-existing conditions are particularly susceptible to COVID-19 complications.  The EEOC recommends that employers treat these pre-existing conditions as disabilities and make reasonable accommodations for these employees to limit their exposure to COVID-19.  These accommodations can include remote work, reconfigured office space, moving offices, reduced or alternate duties, or other accommodations that make sense for the business and the individual’s particular job.

Childcare Considerations

Even as businesses reopen, many schools and childcare centers remain closed for the remainder of the school year.  In Massachusetts, all schools are closed until the fall, and daycare centers are closed until at least June 29th.  Employers should be aware that even if they reopen the office, many employees will not be able to come to the office because they do not have childcare.  Employers have several options they can consider for employees without childcare, depending on each employee’s unique situation:

  • Extending remote work options. Some employees may be able to work effectively at home but not able to come into the office.  Employers should consider extending remote work options to accommodate these employees.
  • Alternative working hours or part-time schedules. Some employees may be able to share childcare responsibilities with their spouse or other family member.  Employers can work with these employees to see if alternative work hours or part-time schedules would help them continue to work while also accommodating their childcare needs.
  • The FFCRA allows employees of businesses with fewer than 500 employees to take up to 12 weeks of paid leave (capped at $200/day) to take care of children who are out of school due to COVID-19. Employers can recover the costs of this leave through a refundable tax credit against payroll taxes.

Employee Fears and Anxieties about Returning to Work

We are hearing an increasing number of stories about employees who do not want to return to work due to their fears or anxieties about contracting COVID-19.  We recommend that employers consider these situations on a case-by-case basis.  As stated above, if employees can work remotely, they should continue to do so if possible.  Employees with pre-existing conditions or heightened risk due to COVID-19 might need reasonable accommodations in the workplace.  Depending on the extent of an employee’s anxiety, it could be considered a mental health condition that would trigger protections under the ADA.  Other employees may need to use their PTO or other company leave policies if they are not ready to return to work.  We recommend carefully evaluating each situation individually before acting.  And the more you can do to make the workplace as safe as possible, the more secure your employees will feel about returning. 

On-Going Considerations

Even as businesses reopen, business will not return to “normal” for a long time.  Employers should be prepared to take a flexible approach to reopening and work with their employees to ensure that as many people as possible can work effectively while continuing to stay healthy.

We may also be facing more shutdowns in the future during this pandemic, so we highly recommend investing in telework options and safe workplaces to prepare for the new normal as the pandemic continues.

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As always, please reach out directly if you have any questions on how to address reopening with your particular business.