Shoal Creek
Abstract: With the easing of restrictions surrounding the Covid-19 outbreak, businesses are starting to bring employees back into the workplace. A successful re-entry program will ensure the safety of company personnel and the public, obviate charges of discrimination and invasion of privacy, and avoid actions that inadvertently violate federal, state, and local employment laws. Employers should set a positive tone to motivate their personnel in a difficult environment.
Working from home is over. Partly, anyhow. And after weeks of telephone conferencing and video chatting, many workers are doubtless eager to return to their offices. In managing this reverse migration, though, businesses must coordinate a patchwork of safety procedures and work area modifications while communicating effectively with employees.
Maybe the greatest challenge is convincing everyone it’s safe to come back to work. “Many people are still scared, and their fear is valid,” says Bill Hagaman, CEO and Managing Partner of Withum (withum.com). “The risk of the virus impacting someone at any moment continues to be very real.”
It stands to reason, then, that employers must ensure that no one gets sick by visiting their facilities. But the reasons for doing so go beyond health and morale. Work-related illnesses can spark injury lawsuits, workers’ compensation claims, or charges the employer failed to provide a safe workplace as defined by the Occupational Safety and Health Administration (OSHA). “As employers put in place their return to work programs they must address legal issues concerning the safety of employees, vendors, suppliers, clients, and customers,” says Paul Evans, a partner in the Employment and Compensation Practice Group in Baker & McKenzie’s New York office (bakermckenzie.com).
Most safety programs will begin with the physical plant. “The business facility must be thoroughly cleaned,” says Richard Avdoian, an employee development consultant in Metropolitan St. Louis. (MidwestBusinessInstitute.com). “Attention must be paid especially to the common areas, restrooms, chairs, and desks. Sanitizing gels should be made available throughout.”
Some employers may need to retool their entire workplace footprint. “Companies with an open model concept will have to consider whether it needs to be modified,” says Bob Gregg, Co-chair of the Employment Practice Law Group at Boardman and Clark LLC, Madison, WI (boardmanclark.com). “People will not want to sit out in the open with others sneezing.” Workstations can be spread apart to the requisite six feet of separation. Plexiglass barriers can be installed where appropriate.
Businesses may need to modify long-standing work procedures. A single-serve machine might replace a group coffee maker. Conference room chairs might be removed so people can sit far enough from one another. Hallways might be turned into one-way corridors. And the job of turning on the lights might be assigned to one person.
Signs posted throughout the facility can remind everyone to maintain proper social distancing, keep washing their hands, and wear masks. “Employers should ensure their workers refrain from unnecessary touching or congregating in cafeterias and conference rooms,” says Susan Gross Sholinsky, Vice-Chair of the Employment, Labor & Workforce Management practice of Epstein, Becker Green in New York (ebglaw.com).
In deciding what to do and not to do with their workplaces, businesses can obtain guidance from the government. Local and state authorities are issuing discretionary guidelines and mandatory directives. Some are very detailed, limiting the number of people permitted in a workspace, for example, to 25% or 50% of a room’s normal capacity. At the federal level, several agencies are issuing return to work advisories ranging from social distancing to the ventilation of workspaces to health screenings for employees. (See, “Government Resources for Re-Opening.”)
Taking temperatures
Federal and state authorities are also offering advice on a popular method for reducing the risk of infection: taking the temperatures of arriving employees. “The prevailing guidance from the Centers for Disease Control and Prevention (CDC) is that any temperature above 100.4 degrees warrants sending the employee home for the day,” says Evans. “If the temperature is above normal, but below 100.4 degrees, then the guideline is to wait 15 minutes and take the temperature again to see if it goes up above 100.4.” Advisories are also available from local and state authorities at various levels of detail. “Temperature checks may be more important in hot spots than elsewhere,” says Evans.
Health procedures of any kind can pose legal issues. “Taking temperatures as people come into the workplace starts to raise wage and hour questions if people must stand in line,” says Gregg. “Employers need to ask, ‘How many minutes are workers standing?’ And ‘Should they be paid for those minutes?’”
Privacy issues may also arise. “What do you do if a person has a fever?” poses Gregg. “How do you respond in a way which does not single them out? You don’t want a gong to go off or to let others see you shuttle them to a holding pen. You want to handle things in a way that does not violate privacy.”
If doorway health inspections help boost morale, employers should realize they are not sure things. “An individual can be infected with Covid-19 without having a fever,” says Evans. “However, the medical community still seems to think of temperature checks as important tools for ensuring workplace safety.”
No safety plan can succeed if too many people crowd into the office, placing themselves and others at risk. Many businesses are moderating the flow of arrivals by bringing back people in stages, even going so far as to require eager volunteers to obtain clearance from their supervisors before returning. Others are separating their staffs into two or more teams and allowing one group in the office at a time.
“Employers should consider the feasibility of staggering employees’ shift times or of establishing an alternating workday or workweek schedule,” says Sholinsky. “They should be flexible and creative in developing policies that maximize productivity and ensure the highest levels of safety.”
If some employees are too eager to return, others will be fearful of doing so too quickly. Allowing those individuals to continue to work remotely may help obviate safety risks. “If your business is set up for some employees to work from home, then consider allowing them to continue to do so,” says Hagaman. “Give special thought to parents of school-aged children in states where schools have shut down for the remainder of the year. Remote working capabilities can also protect employees who take public transportation to work by limiting their exposure.”
Employers need to avoid intentional or nonintentional discrimination in the pool of people returning to work. “When everyone is not recalled, some people are laid off,” says Gregg. “The demographics of the exceptions should be worked through.” There should be no pattern by age, disability, race, or gender.
Particular care should be taken if someone in a managerial role is overheard saying the pandemic has created a golden opportunity to not bring back a “difficult” employee. “You have to take a step back and figure out why the employee is labeled difficult,” says Gregg. “Is it because of poor performance, or because they have spoken up on protected matters concerning safety or employment?”
The law explicitly prohibits adverse actions against anyone who has taken time off as a direct result of the Covid-19 outbreak. “Employers may be subject to retaliation claims when employees are terminated or otherwise subject to adverse employment actions after they have taken sick leave, a leave of absence under the Family and Medical Leave Act (FMLA), or under a COVID-19-specific law such as the Families First Coronavirus Response Act (FFCRA),” says Sholinsky.
The Americans With Disabilities Act (ADA) and equivalent state and local laws create an especially hazardous legal terrain. An employer should not deny a request to work from home if that arrangement would be a reasonable accommodation for a Covid-19 related disability. “There may be a charge that the employee should have been allowed to work remotely if that individual has a compromised immune system or a condition identified by the CDC as one that would make the employee more vulnerable to being sickened by Covid-19,” says Sholinsky.
Ironically, the prevalence of remote work arrangements in recent months may have weakened employers’ traditional legal defenses in this area. “Given that employers allowed people to work from home for so long during the pandemic, it may be much more difficult to claim undue hardship as a basis for denying a request to do the same as an accommodation under the ADA,” says Gregg.
It may be wise now to record any inefficiencies that have arisen from recent work-from-home activity. “Waiting to document difficulties until after a request for continuing home-based work is made will seem like an after-the-fact justification,” says Gregg. “That carries much less weight with investigators or courts.”
The ADA legal coin has an obverse side. “Some employers may decide to keep people with underlying conditions, the at-risk folks, out of the office,” says Gregg. “The fear is that if they come back they will be more susceptible to catching the virus with a more serious result.”
Yet excluding at-risk people can be tricky. “Who is at risk?” poses Gregg. “Anyone over the age of 60. So, the employer is tempted to say, ‘Older people cannot come back.’ Well, that means they cannot earn money and that can create an age discrimination issue.”
The decision to exclude people from a back to work program must be based on more than a stereotypical presumption, says Gregg. The ADA’s “direct threat standard” states that employers can exclude workers only when there is actual evidence that they pose direct threats to themselves or others—perhaps because they have told the employer they have an underlying condition or they have a relevant symptom.
The need for a direct threat extends to a requirement for a medical examination. “The employer cannot send someone to the doctor to validate that they are okay to come back to work, if that same requirement was not made for everyone else,” says Gregg. “There needs to be more than a perception of a disability to send a person to the doctor.”
Attorneys caution that pay equivalency is not a defense against discrimination in these cases. “Even if the salary would be the same, the individual made to stay at home may lose out on valuable perks of actually working at the office,” says Gregg. “These might include client contacts, important sales meetings, or just generally being ‘in the know.’ They might even miss out on promotions: If you are not seen, you are not considered. So if you pick and choose who stays home, you have to be careful about picking some people and not others.”
The above considerations apply to employers of all sizes: While the ADA only covers businesses with 15 or more workers, most states have similar laws for smaller organizations.
As careful as an employer may be in designing a safe and effective back to work program, it’s likely that not everyone will be pleased.
“Employers should put mechanisms in place to deal with complaints about working conditions, including practices such as social distancing to ensure the safety of the work environment,” says Evans. “Some employees may feel the employer has not gone far enough or has not enforced the rules appropriately. Employers need to be ready to make necessary changes and ensure there is no retaliation against people who file complaints. This is important from the standpoint of both employee relations and whistleblower laws.”
Managers and supervisors, too, should receive special training on the new workplace rules and how to respond if anyone complains about them or refuses to cooperate. A point person can help. “One way to minimize risks is to establish a reopening coordinator who understands all of the moving parts of a back to work program,” says Evans. “It’s good to have someone who makes sure people understand the rules and their responsibilities.”
Creating a safe workplace is one thing. Building the trust of employees is another. People must understand that everything possible has been done to protect their health and safety.
“Transparent communication is critical right now,” says Hagaman. “Employers need to prevent confusion among their teams by answering their questions before they re-enter the workplace.”
Hagaman suggests addressing these questions: How will you assess the health of your employees prior to walking into the building? Where will your employees find supplies such as face masks and sanitizing wipes? What parts of their workspace will be closed? Will conference rooms and cafeterias remain open? And who will be allowed in the building, and when?
Not the least of challenges is that of communicating the panoply of new procedures to employees who may feel overwhelmed by a long list of to-dos and do-not. Some employers are sending email broadcasts with answers to such questions. Others are posting informative signs in the workplace. And others are packing personal protective gear into “goody bags” and handing them out to returning employees.
All such steps can calm fears. And given the negative emotions that have surrounded the Covid-19 outbreak, employers should try to present their communications in a forward-looking spirit. “As people start re-entering the workplace employers might create a return-to-work rally with a positive tone, applauding the performance of the staff in light of everything that has happened,” says Avdoian. “And as things move forward one way to encourage good morale is to ask for volunteers to serve on a committee that addresses staff concerns.”
The pandemic itself might present businesses with the opportunity to retool their operations, finding ways to work more productively and to utilize technology more efficiently. “We should create new policies and procedures in response to the pandemic as we do when faced with any obstacle or challenge in the business world,” says Avdoian. “We are always looking for ways to enhance our services. This is another opportunity to do so.”
Phillip M. Perry is an award-winning business journalist based in New York City. He covers management, employment law, finance, and marketing for scores of business magazines.
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