I. When Can America Go Back To Work?
As employers and employees increasingly chafe at the bit to return to the workplace, businesses must look to state and local stay-at-home directives to determine when they can reopen. It is anticipated that this will occur in phases and will likely depend on the nature of the business and jurisdiction where it is located.
New Jersey: New Jersey’s Stay-At-Home order was initially expected to expire on May 8, 2020. Although Governor Murphy has permitted state and county parks and golf courses to reopen on May 2, 2020, the Governor announced that the stay-at-home directive will remain in place indefinitely until the following six principals in his plan entitled The Road Back are sufficiently met:
1. Sustained reductions in new COVID-19 cases
2. Expanded COVID-19 testing with quicker results
3. The implementation of robust contact tracing
4. Securing safe places where those diagnosed in the future can isolate
Only after the first four steps are met can the state move on to the final steps:
5. Responsibly starting the economy
6. Ensuring resiliency in the future
New York: New York’s Stay-At-Home order is slated to expire on May 15, 2020, and Governor Cuomo has announced a regional four-phased plan for reopening businesses depending on the nature of the industry. Construction, manufacturing and curb-side retail are expected to open first, and more crowded venues such as art, entertainment, recreation and education opening in the final phase. Less populated regions will be permitted to initiate the phased in process before more densely populated areas that were hit hard by the pandemic. Each region must satisfy seven specific criteria, including 14-day declines of hospital cases and hospital deaths related to the virus.
The Federal Government’s Guidelines for Opening Up America: President Trump unveiled a three-phase plan for reopening that measures the progress made in combating the crisis and lessens restrictions if improvement is demonstrated. That plan can be found here.
II. Employers Must Prepare Now for Reopening
As more jurisdictions open up or announce plans for reopening, employers must prepare a plan for reintroducing employees into the workplace that takes into account changes to the physical plant, those employees who should be recalled first, what social distancing protocols should be implemented, health screening and monitoring of employees, accommodations of ill employees and other considerations. There is no “one-size-fits all” approach, and employers must tailor each plan to evolving federal, state and local requirements as well as the nature of the employer’s business. For example, some jurisdictions are imposing protocols for reopening that include mandatory face masks and employee screening. Various publications from the CDC, the Occupational Safety and Health Administration (OSHA), the Equal Employment Opportunity Commission (EEOC) and the US Department of Labor (USDOL) are only some of the resources employers should consult in anticipation of a return to work. Below is a distillation of some of the guidance from these and other resources to guide employers.
III. Cleaning and Disinfecting the Physical Plant
OSHA mandates all employers to provide a workplace that is “free from recognized hazards that are causing or likely to cause death or serious harm.” OSHA determined that this applies to preventing occupational exposure to COVID-19 and issued Guidance on Preparing Workplaces for COVID-19, available here. The CDC has issued Guidance for Cleaning and Disinfecting, including guidance for workplaces, available here before permitting employees to return to work. All offices should be cleaned and disinfected in accordance with the guidelines before reopening.
IV. The Physical and Administrative Modifications to the Workplace
The OSHA and CDC guidance encourage employers to develop and communicate to employees their plan to minimize close contact with others in the workplace. The plan should address changes to the physical plant as well as behavioral and hygiene protocols that must be followed when employees return.
Modifications to the Physical Plant. Physical changes should be made to places where employees tend to congregate. These measures may include the following:
- making points of entry into or within the workplace, as well as in stairways, one way, if practicable, to avoid face-to-face contact
- replace standard door handles, bathroom fixtures and light fixtures with “electronic eyes” or push pads to facilitate hands-free operation
- installation of high-efficiency air filters or other devices to increase circulation
- erect plexiglass or other barriers to block airborne particles in reception areas, desk fronts and other areas where face-to-face contact is unavoidable
- remove seating from conference rooms, lunchrooms, reception areas, etc., to ensure that seating is at least 6 feet apart; if this is not possible, consider closing these areas
- rearrange work spaces to ensure maximum social distancing, such as relocating work areas and arranging work spaces back-to-back to eliminate front-facing work areas
- in areas where employees congregate to use work equipment (e.g., copiers, time clocks), place distance markers on the floor to ensure social distancing and require sanitization by employees after each use
- create “sanitizing stations” throughout the workplace equipped with hand sanitizer, disinfectant spray and wipes, and disposable gloves and masks
- post appropriate signage to advise of occupancy limits, social distancing requirements and disinfecting protocols
Businesses must evaluate their physical plant and workspace layouts to assess those protocols that are practicable and should be undertaken to ensure a safe workplace for employees, as required by OHSA.
Behavioral Protocols. Employers must implement and enforce practicable workplace behavioral protocols aimed at minimizing social contact, including:
- continued remote working for those employees able to do so
- implementation of staggered shifts or workday schedules to minimize the number of employees in the workplace
- encourage employees to bring their own lunch to work and eat at their desks or workstations; ban communal food and discourage lunches that require refrigeration
- limit the use of office refrigerators and provide single use coffee creamers and bottled water; use single-use coffee/tea makers and require disinfecting after each use
- limit the numbers of persons in conference rooms, kitchen areas, lobbies and other congregating areas
- limit the number of persons permitted in elevators
- modify vendor delivery methods to limit contact with staff, such as leaving all deliveries in the lobby or curbside pick-up
- opt for virtual meetings whenever possible and discontinue any large meetings
- discontinue all non-essential travel
Hygiene Protocols. Employers must consider requiring and enforcing hygiene protocols aimed at minimizing the spread of infection, which include:
- wearing of masks in common areas and in-person meetings
- the wearing of gloves when touching surfaces used by many employees
- specification of those employees who must wear additional Personal Protective Equipment in the workplace
- instructing users of shared equipment or workspaces (e.g., copiers, staplers, common workstations) to wipe down with sanitizing wipes after each use
- frequent handwashing
- eliminating all handshaking and require social distancing (6 feet or more) at all times
- requiring sick employees to remain at home
- design an action plan if an employee tests positive/presumptively positive for COVID-19
Employers should undertake a complete assessment of the workplace and develop a plan to employ all necessary measures before employees are permitted to return to the workplace. All necessary details of the plan must be distributed to employees before they are permitted in the workplace.
V. Identifying Those Employees Who Will Return to the Workplace
Be it for continued social distancing mandates or declined staffing needs as businesses re-open, most workplaces will implement a phased in return to duty. Employers must assess immediate business needs upon reopening, as well as the current workforce (including employees who were laid off who might be subject to recall) to determine those employees needed to fit those needs. Factors to be considered include the following:
- What employees or departments are most critical to meet immediate business needs? If individual employees are selected over other similarly-situated employees, employers should develop legitimate business related selection criteria to eliminate claims of discriminatory selection.
- Flexible plans should be developed for the phase in of additional staff as business ramps up.
- Once staffing needs are developed, assess those employees who can continue to remotely work, either on a full-time or periodic basis to, reduce the headcount in the workplace. Staggered in-office/work-at-home schedules should be considered to meet social distancing requirements.
- For those businesses that do not expect business to return to pre-COVID levels in the foreseeable future and find it necessary to “right-size”, identify those employees who will be included in a reduction in force. Develop legitimate business related selection criteria and consult with employment law counsel to ensure compliance with anti-discrimination laws and federal/state WARN Act requirements.
- Prepare notification for employees who will be returning to the workplace. Explain the cleaning and disinfecting measures that have been taken and include all plant modification, behavioral and hygiene protocols discussed above that will be implemented and enforced upon their return to the workplace. Advise of any screening requirements (see next section).
- Communicate with employees who will remain on furlough and advise them that you have commenced a phased in return to work and when you anticipate their return to the workplace. If that is uncertain, indicate that you will be in contact in the near future to update them on their work status.
VI. Determine If Screening Requirements Will Be Implemented
The Americans with Disabilities Act (ADA) prohibits employers from making disability related inquiries or mandating medical examinations unless these measures are “job related and consistent with business necessity.” Prior to the pandemic, most traditional workplaces were precluded from employing these measures under the ADA. However, the EEOC has determined that during a pandemic, employers are permitted more latitude and may take the following measures to ensure workplace safety:
- Inquiring about symptoms. An employer may ask employees if they are experiencing symptoms of the virus (as determined by the EEOC and public health authorities), such as fever, chills, cough, shortness of breath, or sore throat. Employers may also require employees to take their temperature at home and report the result when reporting for duty. This information must be maintained in a confidential medical file in compliance with the ADA and HIPAA. Employers are also free to ask if anyone in the employee’s household has been diagnosed with COVID-19 or if the employee has had close contact with such an individual.
- Taking body temperature. Although taking body temperature is generally a prohibited medical examination, due to the community spread of COVID-19, the EEOC has determined that employers may measure employees’ body temperatures, while keeping in mind that infected individuals may not have a fever.
- Administering COVID-19 tests. During the pandemic, employers may administer COVID-19 testing to determine if employees entering the workplace are infected because infected individuals pose a direct threat to the health of others. But employers must ensure that the tests are accurate and reliable, and the FDA has issued guidance on what may be considered safe and accurate testing, available here.
- Excluding sick employees. Employees who report symptoms, are running a fever (100.4 degrees Fahrenheit or higher) or test positive for COVID-19 must be sent home and advised to contact their physician. These employees should not be permitted to return without medical clearance or only after being in isolation for 10 days since the onset of symptoms and 72 hours since the fever was resolved and respiratory symptoms began to improve.
- Excluding employees who have been exposed to COVID-19. Employers can require employees who reside with an individual who tested positive or had “close contact” with an ill individual to remain at home for 14 days symptom free.
- Excluding high-risk employees. Employer may not exclude asymptomatic individuals with underlying health conditions who are at high risk unless the employee’s disability poses a “direct threat” to his or her health that cannot be eliminated or reduced by reasonable accommodation. The CDC’s listing of individuals deemed to be at high risk is available here. See the next section for further information on COVID-19 accommodations.
Employees who refuse testing may be barred from the workplace. Employees invoking a religious exemption to screening may be protected by Title VII and the employer must provide reasonable accommodation unless it would impose undue hardship. Should this situation arise, consult with employment law counsel.
Employers are also free to implement these protocols for visitors to the workplace during the pandemic. Screening of employees only upon a recall, however, will merely determine if the employee is currently ill. Daily screening may be cost-prohibitive and too time-consuming. If a business decides to implement screening, they must ensure that employees doing the testing are properly trained on use and sanitization of testing devices, and non-exempt employees will have to be paid for the time spend undergoing screening. The physical location of testing and privacy concerns must also be addressed.
Of course, all medical information gathered by the employer must be maintained in confidential files. Employers should also keep in mind that the expanded ability to make medical inquiries is limited to the pandemic and will diminish when the threat has abated. See the EEOC’s FAQ on COVID-19 and the ADA available here. Finally, employers must continue to enforce all disinfecting, social distancing and hygiene protocols to eliminate workplace health hazards.
VII. Reasonable Accommodation of Disabled Individuals Under the ADA
Employees with medical conditions that put them at high-risk, should they contract COVID-19 at the workplace, may not be excluded unless reasonable accommodations designed to protect the employee cannot remove the “direct threat” of exposure to the virus. Accommodations may include the following:
- working from home
- changes to the work environment, such as plexiglass, one-way aisles, reconfiguration of work areas or other steps to minimize contact with others
- temporary job restructuring to remove marginal job duties that increase contact with others, temporary transfer to another position or modified work schedules or shift assignments with less risk of exposure
- exemption from requirements to wear protective gear, or providing alternate gear (e.g., non-latex gloves, modified face masks, disposable gowns), if feasible
Employers are permitted to ask employees with known disabilities if they will need reasonable accommodations upon return to the workplace. As with any request for accommodation, the employer should request medical documentation to substantiate the need for accommodation (unless the need is obvious), including (1) how the disability creates a limitation, (2) how the requested accommodation will effectively address the limitation, (3) whether another form of accommodation could effectively address the issue, and (4) how a proposed accommodation will enable the employee to continue performing the “essential functions” of his position (that is, the fundamental job duties).
Excluding asymptomatic individuals at high risk. For fear of OSHA or other legal liability, employers may want to exclude individuals deemed to be at high risk for contracting COVID-19 (the CDC’s listing of high-risk individuals can be found here). However, the ADA does not permit an employer to exclude the employee solely because they are at high risk. Exclusion is not permitted unless the employee’s disability poses a “direct threat” to the employee’s health that cannot be eliminated or reduced with reasonable accommodation. This requires an individual assessment based upon medical judgment of the employee’s ability to safely return to the workplace with or without reasonable accommodations, with due consideration of factors such as the duration of the risk, the nature and severity of the potential harm, the likelihood that the harm will occur, and the imminence of the potential harm.
For further information on accommodation obligations during the pandemic, see the EEOC’s FAQ on COVID-19 and the ADA available here.
VIII. Human Resources Issues for Returning Employees
Employers can expect to face a whole host of COVID-19 related HR issues when resuming operations, including sick/family leave requests, fears of workplace exposures, harassment of those suspected of having COVID-19, notification of positive cases in the workplace and more.
COVID-Related Employee Leave Rights. Employees recalled to duty may invoke various leave rights to delay a return to duty or subsequent to their return to duty. The Families First Coronavirus Response Act (FFCRA) applies to employers with 500 or less employees and provides the following emergency leave rights through December 31, 2020:
- FFCRA Emergency Paid Sick Leave. All employees, regardless of tenure, are eligible for up to 80 hours of pay if 1) they are subject to a quarantine order or caring for an individual subject to an order; 2) they have been advised to self-quarantine by a health care provider (or caring for an individual advised to quarantine); 3) they have COVID-19 symptoms and are seeking medical attention; or 4) they are caring for a child because of the closure of the child’s school or place of childcare because of the pandemic. If the absence is due to the employee’s condition, the employee is entitled to full pay, subject to a maximum payment of $511 per day; if the absence is to care for another, the employee is entitled to 2/3rds pay, subject to a maximum payment of $200 per day.
- NJ Earned Sick Leave. After the employee has exhausted FFCRA Emergency paid sick leave, they may use any accrued NJ earned sick leave benefits for the COVID- related absences listed above. In addition, employees with a generalized fear of returning to the workplace who submit medical documentation of disabling anxiety or other mental health disorders may use earned sick leave for the absence.
- FFCRA Emergency Family and Medical Leave Expansion. Employees caring for a child because of the closure of the child’s school or place of childcare are eligible for up to 12 weeks of leave (2 weeks unpaid, 10 weeks at 2/3rds pay, subject to a maximum payment of $200 per day) because of the pandemic. Any time taken will be counted towards all FMLA leave benefits.
- NJ Temporary Disability, Workers Compensation and Family Leave Insurance Benefits. Employers must keep in mind that employees who experience COVID related absences may be eligible for these State income protection benefits during the absence.
Employers should be as flexible as possible in the application of their leave policies while the pandemic continues. For example, many employees fully exhausted their paid time off benefits during unpaid COVID related furloughs or other absences. Some of these employees may have made vacation plans before the onset of the pandemic. If operational needs permit, consideration should be given to permitting employees to borrow unaccrued time or taking unpaid leave so they can follow through with their planned vacations.
Employees who refuse to return to duty for fear of contracting COVID-19. With certain exception discussed below, employees who refuse to return to duty out of fear of contracting the virus or bringing it home to compromised family members are generally not protected and may be subject to termination. Communicating the safety measures undertaken in the workplace may dispel those fears. Employers should also consider alternatives, if practicable, such as permitting the employee to telework, an alternate schedule, or a reasonable unpaid leave of absence. Hazard pay might be considered to entice workers engaged in high-risk activities to return to the workplace.
Some employees, however, may be entitled to protection under certain circumstances:
- If the employee’s fear creates anxiety or other health conditions that are substantiated by a treating physician, the employee is entitled to reasonable accommodation for the disability. See the preceding section for the duty to accommodate.
- Under OSHA, employees can refuse to work if they have a specific, fact-based fear of infection in the workplace, not merely a generalized fear, that cannot be addressed through the employer’s health and safety measures.
- Under the NLRA, employees who join together to complain about unsafe workplace conditions are engaged in protected activity if the refusal to work is based upon a good-faith belief that working conditions are unsafe.
Determination of whether the employee falls within one of these narrow exceptions should be made with the assistance of employment law counsel.
Discrimination Against Employees Suffering from COVID-19. New Jersey Governor Phillip Murphy signed a Bill that prohibits termination, a refusal to reinstate or other discriminatory employment action against employees who have tested positive for COVID-19 or are presumed to have the virus. Employers should also remind all employees that harassment of these individuals is likewise prohibited and take appropriate remedial action if this occurs.
Returning to the workplace under the “new normal” will be a challenge for every employer. Businesses must take many factors into consideration and ensure a safe work environment before permitting employees to return. The development of effective policies and procedures to implement the return to work is critical. Because every workplace is different, the return-to-work plan must be customized for each workplace. Given the numerous legal issues involved, prudent employers should consult with employment law counsel to develop a compliant plan.