In response to the lifting or relaxing of shelter in place orders in a number of states, many businesses plan to resume certain operations during the pendency of the COVID-19 pandemic. The health, safety, and well-being of employees is paramount, and companies should update or develop their pandemic response operations plans to ensure that work may resume safely. Any resumption of operations must heed to the requirements of federal and state orders and directives. In addition to complying with such requirements, or where no such enforceable standards exist, businesses should consider the recommendations and guidance issued by relevant government entities and public health agencies.
While reopening plans are inherently workplace and location specific, certain overarching workforce considerations should inform both the drafting of such plans and broader decision-making by management and boards. Below is a list of 15 key legal considerations for employers that are planning to reopen their businesses. This list is non-exhaustive and focused on issues related to personnel policies, worker safety, regulatory compliance, and privacy. Employers should ensure that reopening plans are tailored to their workplaces and updated to reflect emerging developments—in particular, municipal and state orders and announcements applicable to their facility locations.
1. Reopening task force: A
company's reopening taskforce should be comprised mainly of the
same people charged with developing and implementing its COVID-19
response plan. This team would be prepared to communicate new
protocols to employees and answer any pandemic-related questions
that may arise.
2. Social distancing: Employers must
implement social distancing measures that are consistent with state
and local requirements as well as industry best practices. Such
measures should include those designed to maintain six feet of
distance between workers; implementing staggered shifts; closing
common areas and breakrooms; and prohibiting handshaking and other
unnecessary person-to-person contact. Retail businesses should take
additional precautions such as designating with signage, tape, or
by other means six-foot spacing for employees and customers to
maintain appropriate distance, including in lines; installing
protective screens or other mitigation measures where
worker-customer interactions are likely; limiting the number of
customers in the facility at any one time; implementing separate
operating hours for elderly and high risk customers; and adopting
contactless payment systems whenever possible.
3. Workplace cleaning and disinfecting:
Companies should implement enhanced housekeeping practices, which
include cleaning and disinfecting frequently touched surfaces,
tools, equipment, and other elements of the work environment as
appropriate, consistent with guidance issued by the Centers for
Disease Control and Prevention (CDC) and the U.S. Environmental
Protection Agency (EPA). Specifically, disinfection should be
conducted using products meeting EPA's criteria for use against SARS-CoV-2,
the virus that causes COVID-19, or identified
equivalents.
4. Personal Protective Equipment: In
workplaces where PPE is not already required, companies should
develop a non-discriminatory policy governing employee use of
respiratory protection and may choose whether to make wearing of
such equipment mandatory (in the case of a recognized hazard in the
workplace) or voluntary (taking into account the CDC's April 3rd recommendation that cloth masks
should be worn in public and in areas where social distancing is
difficult). Considerations related to masks and respirators were
discussed in a previous WilmerHale advisories, available here and here.
5. Self-reporting of COVID-19 symptoms or
exposure: If not already required by state or
local order, employers should develop a policy to address whether
and how employees should notify the company if they test positive
for COVID-19, learn they have been exposed to COVID-19, and/or are
exhibiting COVID-19 symptoms (including coughing, fever (100.0 or
higher), shortness of breath or difficulty breathing, or a
combination of early symptoms such as chills, body aches, sore
throat, headache, diarrhea, nausea/vomiting, loss of smell, and/or
runny nose). Additionally, a developing best practice—and a
requirement in certain jurisdictions—is to require employees
to self-certify, prior to entering the workplace, that they do not
have a fever or other symptoms of COVID-19, have not to their
knowledge been in close contact with someone who has recently
contracted COVID-19, and have not been advised by a doctor or
health agency to self-isolate or quarantine.
Some jurisdictions have mandated that employers administer on-site
temperature checks before allowing employees to enter the work
facility. As discussed in a previous WilmerHale alert, such a practice is more
involved than self-reporting from a compliance perspective, and
counsel should be involved in developing a protocol to conduct
on-site screening.
6. COVID-19 testing: Updated guidance
issued by the Equal Employment Opportunity Commission (EEOC)
on April 23, 2020, indicates that an employer may choose to
administer COVID-19 testing to employees before they enter the
workplace. The EEOC noted, however, that employers must ensure that
the tests are accurate and reliable. Per the EEOC, employers may
consult (and should track updates to) guidance from the U.S. Food
and Drug Administration (FDA), the CDC, and/or other public health
authorities to make that determination. However, testing only
reveals if the virus is currently present; a negative test does not
mean the employee will not acquire the virus later. The EEOC also
cautioned that, for a variety of reasons (including the fact that
testing is not 100% accurate), COVID-19 testing is not a substitute
for taking other protective measures at a work site.
7. Employee exhibits symptoms at
work: Employers must have an established
protocol to address instances of employees exhibiting COVID-19
symptoms at work. Any employee who is feeling ill or is exhibiting
COVID-19 symptoms should be immediately separated from the rest of
the staff and moved to a company-designated isolation area. The
employee should be given a mask and protective gloves as soon as
practicable, and arrangements should be made for the employee to
return home or go to a nearby health center, if circumstances
dictate. Guidance from the CDC and local health departments, if
applicable, should be consulted to inform cleaning and disinfecting
protocols.
8. Returning to work after illness:
Employers also should issue clear policies explaining when an
employee may return to work after experiencing symptoms associated
with COVID-19. Pursuant to CDC guidance, an employee with confirmed
or suspected COVID-19 can return to work after at least 3 days (72
hours) have passed since symptoms have dissipated without the aid
of medications and at least 7 days have passed since
symptoms first appeared. An asymptomatic employee who tests
positive for COVID-19 may return to work after at least 7 days have
passed since the positive test, provided that the employee remains
asymptomatic that entire time. Employers should establish a
protocol based on (or more restrictive than) those guidelines and
enforce that protocol consistently for all workers.
9. Contractors and vendors: It is
important to remember that other members of the
community–—contractors, vendors, and other business
partners—may also have an impact on the safety of a
company's workplace and employees. To the extent that it is not
necessary for such other persons to be on-site at a company, they
should be instructed, until further notice, not to report to the
company's office or facility (without written approval by a
designated company official). Where such persons are deemed
critical for the maintenance of a company's operations, the
company should be regularly communicating with such contractors,
vendors, and other business partners and ensuring that they utilize
the same types of precautionary measures and protocols for
themselves and their employees that the company requires for its
own employees. For example, if a company requires that its own
employees provide a daily certification they are not exhibiting
COVID-19 symptoms and have not been exposed to the virus, third
parties permitted to enter the company's premises should be
required to make the same reports, either directly to the company
or through their own employer (if, for example, they are engaged
through a staffing company). A company should ensure that its
business partners communicate any known risks or exposures as soon
as they arise, and it should likewise provide such partners with
the reciprocal commitment and courtesy (while maintaining
appropriate confidentiality of employee information). A company
should also carefully review its contracts with contractors,
vendors, and other partners to determine the parties'
respective rights and responsibilities in the case of work
disruption.
10. Telework: Employers have an
enduring obligation to address known workplace hazards. One of the
best ways to minimize employee exposure to hazards during the
current public health crisis, as emphasized by the CDC and other
agencies, is to allow those who can perform their work remotely to
do so. When a business has decided that it is necessary to
continue or resume on-site operations, it should identify those
individuals whose on-site presence is essential to the
company's operations and consider whether other workers may
continue to work remotely for some period of time. Employers may
also consider shift work to minimize the number of workers who are
in the workplace at any one time, which may promote better social
distancing. Certain Occupational Safety and Health Administration
(OSHA) considerations related to remote workers are discussed in a
WilmerHale client alert available here.
11. Leave and absence protocol: During
the public health crisis, employers should consider modifying or
extending existing company leave policies to encourage employees to
stay home from work if they are sick or have been exposed to
COVID-19. Employers should be consistent in granting leave requests
and abide by company policy, as well as applicable federal, state,
and local law.
Additionally, for employers with fewer than 500 employees, the Families First Coronavirus Response Act (FFCRA) provides up to 12 weeks of public health emergency leave to eligible employees who are unable to work because they must care for their child whose school is closed or whose childcare provider is unavailable due to a public health emergency related to COVID-19. The first ten days of such leave may be unpaid, but the remaining days must be paid in an amount prescribed by the statute. An employee may elect, but is not required, to use other types of paid leave (including the emergency paid sick leave available under the FFCRA) during the ten-day waiting period that would otherwise be unpaid under the FFCRA.
The FFCRA also provides up to 80 hours of emergency paid sick leave (in an amount prescribed by statute) to eligible full-time employees who are unable to work for specified reasons related to COVID-19. Part-time employees are entitled to emergency paid sick leave based on their average number of work hours in a two-week period. An employer may not require an employee to use other paid leave already provided by the employer before the employee uses emergency paid sick leave under the FFCRA. See WilmerHale alerts on the FFCRA by clicking here and here.
Although not required to do so, larger employers (i.e., those with more than 500 employees) may consider temporarily adopting a policy that provides for paid (or partially paid) childcare-related leave. If such paid leave is not feasible, larger employers may consider offering unpaid leave to employees who need to stay home due to a school or daycare closure and have already exhausted available paid time off.
12. Discrimination, harassment and
retaliation: Employers must make every effort to
prevent discrimination, harassment and retaliation in the
workplace. All return-to-work protocols, as well as decisions
regarding COVID-19 related leave requests, must be implemented
without discrimination or retaliation. Employers also should remind
employees that discrimination, harassment, and
retaliation—COVID-19 related or otherwise—will not be
tolerated.
13. Workers' compensation laws: State
workers' compensation benefits generally are an exclusive
remedy for employees injured in the scope of their employment.
Employers should be cautioned, however, that workers'
compensation law may not be an absolute bar to other claims by
employees who contract COVID-19 in the workplace. As an initial
matter, the contracting of COVID-19 in the workplace may or may not
be considered a workplace injury for purposes of workers'
compensation, depending on applicable state law, the specific
circumstances of the infection, and/or the employee's line of
work. And if an employee's COVID-19 illness is not deemed a
workplace injury (or if a business has not obtained workers'
compensation coverage on behalf of a worker), that individual may
be able to pursue a traditional "tort" claim against a
business. Such a claim would typically require a demonstration of
some level of negligence or other fault on the part of the
business; causation would also be a key issue in litigation. In
addition, even where an employee's COVID-19 illness
would be considered a workplace injury (and thus allow an
employee to be eligible for workers' compensation benefits), an
employee still might be able to assert a tort claim in certain
states—depending on the circumstances—based upon a
demonstration of intentional misconduct, fraud, or serious and
willful conduct. A subcontractor employee also could seek to hold a
contractor liable for environmental, health and safety damages
under Supreme Court precedent that imposes liability when a company
assumes responsibility for day-to-day management of environmental,
health and safety matters.
14. OSHA enforcement: Beyond workers'
compensation (and/or tort claims, as applicable), if an employer is
cited for workplace hazards by OSHA because of a failure to act
reasonably to address known COVID-19 related risks in the
workplace, it can be subject to penalties. An employer can best
position itself to avoid such liability by following the guidance
and directives of the CDC, OSHA, and state/local governments and
agencies, and preparing employees for unannounced site visits from
these agencies.
Importantly, COVID-19, unlike the common cold and influenza, is not exempted from OSHA reporting and recordkeeping requirements. Employer responsibilities related to confirmed cases of COVID-19 in their workforce are detailed in a WilmerHale client alert available here. OSHA also recently issued updated guidance effectively loosening its enforcement of COVID-19 recordkeeping for industries other than healthcare, emergency response, and correctional institutions; for all other industries, a COVID-19 case is potentially reportable only if there is objective evidence that is reasonably available to the employer that the case is work-related (e.g., a number of cases developing among employees who work closely together without another explanation).
15. Employee privacy and appropriate privacy protection for others: Businesses that reopen during the pandemic must take steps to protect employee privacy and keep medical information confidential in accordance with federal law. It also will be critical to plan carefully for any information collection about other individuals—including visitors, clients, contractors and retail consumers.
Companies will want to pay careful attention to applicable law
and related best practices in connection with the collection of
information concerning employee health. These activities typically
do not require compliance with the privacy provisions of the Health
Insurance Portability and Accountability Act (HIPAA), as these
actions of an employer to monitor temperatures and the like are not
subject to HIPAA. Nonetheless, appropriate attention should be paid
to how this information is gathered, how employees with particular
medical conditions are identified and treated, and how this
information is shared and maintained. The Americans with
Disabilities Act (ADA) includes protections for employee medical
information, including employee temperature reports, reports of
other health symptoms, and the fact that an employee has tested
positive for COVID-19. Per the EEOC, the ADA requires that all
medical information (including the examples provided in the
previous sentence) about a particular employee "be stored
separately from the employee's personnel file, thus limiting
access to this confidential information." Although such
information may be communicated to those in company leadership with
a true need to know (so that they can, for example, take
precautions consistent with CDC guidance), such information should
not otherwise be disclosed to employees. For the avoidance of
doubt, this means that, if an employee reports COVID-19 symptoms or
tests positive for COVID-19, a company should not disclose the name
of that employee to their coworkers (provided, however, the company
should inform potential close contacts of the employee that they
may have been exposed to COVID-19).
Companies also may be considering various tracking activities
related to employees, either in direct connection to work
activities or in "away from work" situations.Companies
may wish to monitor employee movement within office settings, when
engaged in company business (such as visiting clients or other
business travel), and (perhaps) even in non-work settings. These
efforts require careful planning on privacy-related issues, both in
the United States and in other countries, particularly in Europe.
Companies should carefully balance the legitimate business purpose
of this monitoring with the extent and intrusiveness of the
information gathering. In any event, companies should plan
carefully to ensure that information can be gathered appropriately
and only used and maintained for legally permissible
purposes.
Many companies also will need to consider whether to collect
information about non-employees in connection with operating a safe
business environment. This can include (for most companies)
vendors, contractors and other "on-site" assistance for
the company. For many companies, it also will involve visitors or
clients, in a professional setting, or, more broadly, guests or
consumers in retail, entertainment or travel-related settings.
While employee privacy laws typically will not apply in these
settings, companies should carefully consider other appropriate
privacy protections as well as ensure that any information
gathering activities are consistent with applicable
non-discrimination principles. While (at least in the United
States) most of these activities will be regulated primarily
through appropriate best practices, data that is collected and
maintained still may be subject to company privacy policies and
perhaps other applicable laws (such as the California Consumer
Privacy Act for California residents), as well as potential
enforcement if there is a data breach or potentially unpermitted
use of this information. In addition, a number of states are
implementing specific legal requirements in connection with the
collection of biometric information. Accordingly, companies who
will be collecting information about non-employees will need to
carefully consider the appropriate uses and disclosures of this
personal information to ensure that they do not run afoul of
privacy and consumer protection principles. This must include data
retention issues and other activities to link this data to other
data that companies may collect about these individuals, which will
be particularly important in connection with individual rights that
are emerging in California, Europe and other places concerning
personal data.
Next Steps
As employers resume operations, they should continue to monitor emerging developments, including location-specific orders and new and revised federal guidance, to update their operations plans—and communicate those changes to their workforce—as appropriate. The authors are following these developments closely and can assist employers in developing reopening plans tailored to their specific needs.
Originally published by WilmerHale, April 2020
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.