Best Practices as Employees Return to the Workforce

BEST PRACTICES AS EMPLOYEES RETURN TO THE WORKFORCE By Jennifer Duggan and Susanna Matingou

Jennifer Duggan is a Shareholder at Duggan Law Corporation. She can be reached at jennifer@duggan-law.com.

Susanna Matingou is Of Counsel at Duggan Law Corporation. She can be reached at susanna@duggan-law.com.

The workplace has been transformed as a result of COVID-19. Employers must balance new requirements, staffing changes, safety and hygiene concerns, and managing their operations, all while avoiding management missteps and liability. Now that some or all of the workforce is returning to work, it is more important than ever to think proactively. As lawyers, we may be employers, employees, and trusted counsel for the same. This article highlights key strategies and a checklist for employers as their workforce returns.

Have a Plan! And Be Willing to Amend It

Pursuant to the Occupational Safety and Health Act (OSHA), all employers have a legal duty to maintain a “hazard-free workplace,” and if employers are voluntarily exposing employees to hazards in violation of published guidance, they are at risk for infected employees as well as litigation. On May 7, 2020, the California Occupational Safety and Health Administration issued COVID-19 Industry Guidance - Office Workspaces which includes comprehensive guidance and steps to take as employees return to the workplace. 1 Savvy employers will become familiar with the OSHA guidance. Overall, employers should be adaptable, recognize when certain strategies are not working, and be willing to adjust.

First, employers should continue the key prevention strategies which most everyone is already familiar with: maintain physical distancing to the maximum extent possible; provide/facilitate use of face coverings for employees and customers/clients; and implement frequent handwashing and regular cleaning and disinfection. There are a number of other measures that employers should be prepared to take: • Prepare a worksite-specific COVID-19 prevention plan that includes a risk assessment of all work areas, and a designated person at each location to implement that plan. Train employees on the plan. • Develop an exposure-response plan that addresses: isolation, containment and contact tracking procedures; stay-at-home requirements; and exposure communications to affected staff. Provide personal protective equipment (PPE) such as: masks, gloves, face shields, and personal hand sanitizer. Detail cleaning procedures and procure supplies. Establish physical distancing measures within the workplace, such as staggered shifts and meal/rest breaks; rotate weeks in the workplace and working remotely; move workstations to increase separation distance; implement one-way traffic patterns throughout workplace. Consider staggered and/or voluntary returns -- welcome back a smaller “test group” of employees. If feasible, let employees choose their return date out of several staggered return dates. Restrict business travel: start with essential travel only and define what that is. Follow government guidance to ease restrictions over time. Define customer and/or visitor contact protocols such as: directing customer traffic through workplace, limiting the number of customers in any area at one time, prohibiting handshake greetings, using video or audio conferencing instead of in-person client meetings, and providing contactless pickup and delivery of products. Be aware of how the workers’ compensation framework might interact with workplace COVID-19 infection. Worker’s compensation will usually pre-empt claims by an employee for injury at work, but there are exceptions to this, such as if the employer is grossly negligent.

Employee Screening Do’s and Don’ts

YOU MAY: take employee temperatures at work. Temperature checks should be reliable, performed consistently, and respect employees’ privacy. All employees entering facilities should be checked only by trained personnel and the results should be treated as confidential.

YOU MAY ASK: employees if they have tested positive for or been diagnosed with COVID-19, if they have symptoms of COVID-19, (e.g., fever of or over 100.4 F, cough, shortness of breath, sore throat, or loss of taste

or smell); if they have had close contact with any person who has tested positive for, or has otherwise been diagnosed with, COVID-19 infection in the past 14 days; if they have been asked to self-quarantine by a health official within the past 14 days; and whether they have traveled to, or stopped over in, a country for which the CDC has issued a Level 3 travel health notice.

YOU MAY NOT ASK: an employee if they have any underlying health condition that would make them more vulnerable if infected by COVID-19. This would be a violation of the employee’s privacy. If you do ask such a question, any employment decision you later make about that employee could be scrutinized as potentially discriminatory, based on the employee’s disability, or the employer’s perception of the employee as having a disability.

If an employee has tested positive for COVID-19, there are key steps employers should take immediately. These steps involve the employee and all others who may have been exposed. Advise your clients to consult with experienced employment counsel to implement these steps properly.

Consider Handbook or Policy Changes

We are not back to business as usual. Employers will likely need to update or create policies to reflect our new reality, including some of the following: • Paid-leave policies adjusted to reflect new requirements and actual business needs. Attendance policies relaxed to encourage sick employees to stay home and which take into account potential increased childcare obligations. Time-off request procedures clarified to indicate when time off can be required by the employer, should sick employees need to be sent home. Flexible scheduling options implemented allowing for compressed workweeks and flexible start and stop times. Meal and rest break policies adjusted to stagger times and processes implemented to encourage physical distancing. Telecommuting policies detailed to reflect the type of work that is able to be done remotely and the procedures for requesting telework. Information technology policies revised to reflect remote work hardware, software, support, and employee reimbursements.

Avoid the Appearance of Bias in Employment Decisions

If the workforce returns in waves, employers should not specifically designate younger employees, or employees without chronic underlying conditions, to return first. This could invite an age or disability discrimination suit, even if the intention was to protect vulnerable employees. Also, employers must beware of the potential disparate impact that their decisions could have. If the

first work unit permitted to return consists solely of employees under 40, and there are older employees in other departments still at home, an employer could be exposed to liability for the discriminatory impact of that decision, even if it had nothing to do with age. Employers must not retaliate against employees for taking COVID-19 protected leave, or because employees might need extra leave in the future. For example, employers must not decide not to re-hire an employee because she has significant caretaking obligations due to COVID-19. In short, employers should ensure they have a legitimate and non-discriminatory reason for every employment decision. Employers can be advised to test their reason by articulating it in a way that they would not mind saying aloud in front of a jury. Finally, employers should ensure they have clear documentation of the reasons for their decisions.

Childcare In the COVID-19 Era

With the closure of schools and daycares, childcare has been one of the biggest issues impacting both employers and employees. Although it remains unclear whether schools will open again, almost nothing is, or will be, the same. Some schools are planning scheduled days off, online learning options, and modified schedules. Some parents might opt for homeschool or other alternatives.

It is important that employers understand their duties and obligations toward their employees with childcare needs. The Family First Coronavirus Relief Act (FFCRA), which applies to businesses with fewer than 500 employees 2 and certain government entities, provides the following leave for all employees of a covered employer, regardless of tenure: two weeks (up to 80 hours, depending on full or part-time status) of paid sick leave at twothirds the employee’s regular rate of pay if the employee is unable to work because of a bona fide need to care for a child under 18 years of age whose school or child care provider is closed or unavailable for reasons related to COVID-19. For employees who have worked for the employer for at least 30 days, the employer must provide up to an additional ten weeks of paid expanded family and medical leaveat two-thirds the employee’s regular rate of pay, for the same reason. Small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or child care unavailability if the leave requirements would jeopardize the viability of the business as a going concern.

However, what if a school has opened up, such that the FFCRA does not apply, but employees are afraid of sending their child back to school based on the child’s or another household member’s underlying health condition? How far must employers accommodate COVID-19-related childcare needs? The short answer is, there is no specific legal requirement to accommodate an employee’s childcare needs. Being a parent in and of itself is not a protected

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class. However, gender and marital status discrimination are both illegal, so employers must treat their married and unmarried employees of all genders equally with regard to leave and accommodation requests. As discussed below, anxiety about returning to work could be considered a disability requiring accommodation under the ADA. And, of course, if a child is experiencing symptoms of COVID-19, the FFCRA will allow an employee of a covered employer to take paid leave to care for the child.

Some employers are considering temporary or permanent on-site childcare. Obviously, this solution raises liability concerns, including the potential for children in the workplace to interfere with COVID-19 exposure control efforts. However, with some workers still at home, employers have found themselves with extra space at the workplace. Employers could subsidize this solution by providing extra insurance coverage and employees can pool the funds they typically allocate toward childcare to the on-site facilities and hiring of childcare personnel. Most employers are implementing flexible scheduling and incorporating more work-from-home options, both of which should assist parents with childcare issues.

Ultimately, employers should continue to be guided by existing employment law as well as the knowledge that flexibility serves everyone. Practically speaking, the employer with a stable workforce has a better chance of long-term success in the COVID-19 era. Therefore, even if accommodating employees with challenging childcare situations is not legally required, best practices dictate versatility, creativity, and common sense.

Be Reasonable: Addressing the Challenge of “Reasonable Accommodations” in the Post-WorkFrom-Home Era

Undoubtedly, some employees will request to continue working remotely although their employers want them to return. Employers will need be prepared to address morale issues and anxiety from reluctant employees. Our “new normal” will impact the interactive process when employees seek reasonable accommodations, whether those accommodations are related to COVID-19 or not. It may be more difficult for an employer to claim that remote work is an “undue hardship” when an entire company has operated remotely for many months. It may be even more difficult to successfully claim that teleworking for one or two days per week is unreasonable. However, this does not mean that employers must automatically allow remote work. We have been working remotely by law and necessity. The fact that remote work was a “reasonable accommodation” during shelter-in-place does not necessarily mean it will be reasonable six months later.

Still, employers must engage in the interactive process in response to a disability accommodation request. If an employee has “anxiety” about returning to work due to COVID-19, does that constitute a disability under the ADA or the Fair Employment and Housing Act? The short answer is: maybe. If the anxiety substantially limits one or more life activities (such as working), it may indeed qualify. If employment counsel determines that the anxiety reported by the employee likely constitutes a covered disability, an obvious accommodation is that the employee be permitted to remain at home. However, what if it would be very difficult to run the business without this person in the workplace – can the employer claim “undue hardship”? Depending on the circumstances, an employer may well be able to avail itself of this defense. Still, employers should be advised that if they abruptly terminate an employee for refusing to work onsite, they may well find themselves defending a lawsuit, meritorious or not.

Ultimately, employers and employees are in uncharted waters with respect to many of the effects of COVID-19. Experienced employment counsel can provide creative but practical solutions to help facilitate a smooth and productive return to the workplace.

1

2 COVID-19 Industry Guidance - Office Workspaces available at https://files.covid19.ca.gov/pdf/guidance-office-workspaces.pdf

Certain municipalities such as Los Angeles, San Francisco, and San Jose have passed measures similar to the FFCRA which apply to businesses with over 500 employees.