When it comes to returning to the office during a global pandemic, many local employers likely have a barrage of questions surrounding liability and the requirements needed to ensure the health and safety of their workers.
To answer these questions, the Dayton Business Journal consulted local legal experts Brian Wright, co-managing partner at Faruki PLL; Jennifer Hann Harrison, partner-in-charge at Taft law firm's Dayton office; and Deborah Brenneman, partner at Thompson Hine, to discuss best practices, legality and recommendations around returning to office work amid Covid-19. Here's what they had to say.
What should business owners know about liability/legal requirements for returning to an office environment during a pandemic?
Wright: Employers need to pay attention to employment laws, regulations and guidance issued by public health authorities and other regulators (federal and state). The Centers for Disease Control and Prevention (CDC), Equal Employment Opportunity Commission (EEOC), and Occupational Safety and Health Administration (OSHA), among others, have issued guidance to help employers reopen their businesses.
Harrison: You'll want to have procedures in place. Once you have a plan it's important to communicate to help people feel more comfortable and so everybody understands what is expected of them. Also, be prepared to remind people in a respectful way about what is expected of them on an ongoing basis. If it becomes a problem and somebody is consistently ignoring the policy, have a plan for how you're going to deal with those people who aren't following the rules.
Brenneman: Employers are also expected to continue to comply with social distancing requirements. Before any employee sets foot back into the workplace, employers should audit whether the physical space allows employees to comply with social distancing guidelines. Employers should spread out workstations where possible and designate six feet of distance where lines are likely to form, such as near entrances and timeclocks and in cafeterias. The CDC recommends that common areas be closed, or that a plan be put in place to limit congregation in those areas.
What can companies legally require for their employees? Can they require things like vaccines or mask wearing?
Wright: As to vaccines, recent EEOC guidance says yes — employers can require their employees to receive the Covid vaccine but employers must make exceptions for employees' religious and disability accommodations. While employers may implement a vaccine mandate, employers should consider the implications of the equal employment laws and ensure compliance. As to masks, also yes. Generally, the mask requirement applies to employers and employees at Ohio workplaces. While there are exceptions and issues that need to be considered before allowing an employee not to wear one, employees are not required to wear masks if it is not advised due to health reasons, against documented industry best practices, prohibited for a specific position by law or regulation, or a violation of a company's safety policy. If a mask cannot be worn by an employee, employers need to consider alternative accommodations.
Harrison: While you can make vaccines mandatory, with some exceptions, we're advising companies they should be very careful in determining whether it's a good fit for their company. I think it's a good idea to consider whether it's really necessary and whether it is consistent with the needs of your business, especially in light of other things you can do to keep workers healthy, like requiring masks, remote working and social distancing. There's also the possibility that, if you make a vaccine mandatory, somebody could become sick or injured as a result of that vaccine and could file a workers' comp claim. We've seen this before with companies who required flu vaccines. If you're a union employer, make sure to consult the collective bargaining agreement before implementing a mandatory vaccine policy. As for masks, you may have an employee who says there is a medical reason they can't wear a mask, so you have to go under an interactive process with them to find out if there are some other reasonable accommodations.
Brenneman: Employers may also require daily screening of employees for symptoms of, or exposure to, Covid-19. The CDC has guidance on how those screenings should be conducted. The CDC also expressly states that employers can and should consider some type of approach to Covid-19 testing of employees. It suggests a combination of approaches, including initial testing upon return to work, periodic testing at a determined interval, and testing when an employee returns to work following a prolonged absence. Employers who implement a testing regimen should examine it to make sure that it is reasonable, consistently applied, and that there is a defined approach for handling positive tests.
What would be your recommendations to business owners who are planning to return to the office?
Wright: Develop a reopening plan and procedures; get professional help to understand the applicable legal and regulatory landscape; ensure that you can maintain a safe work environment; and determine the need for screening, testing and the use of personal protective equipment.
Harrison: Make sure you're familiar with federal, state and local orders, and use that information to develop a plan that works for your company. It's also important to develop a plan for contact tracing if you do have somebody in the office who tests positive. Once again, it's very important to communicate those plans and do so both verbally and in writing.
Brenneman: Companies that are bringing employees back to the workplace or expanding the reintegration of their workforce should develop a thoughtful and comprehensive plan to handle the myriad new issues they face. At the core of that should be a point person (or committee) to ensure that the company stays up to date on new regulations and guidance, that policies are applied consistently, and that workplace safety issues are addressed from a global perspective.
Originally published by Dayton Business Journal.
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