Rolling Reopening: Planning for Employment-Related Issues

As we approach May 2020, many federal, state, and local slow-the-spread guidelines and stay-home orders are set to expire. Although some jurisdictions may extend their guidelines and orders, others may modify them to allow a gradual reopening of now-closed businesses, and it is possible that some may allow restrictions to expire altogether. The economy’s gradual reopening is likely to be accompanied by restrictions and conditions that will vary from state-to-state and city-to-city.

As the process to reopen businesses unfolds, our employment law team has identified employment-related considerations that employers, who have been shut down or largely limited to working remotely, should be planning for. This advisory focuses advice from our OSHA law attorneys and is intended for employers in general industry.

Note: Employers in the healthcare industry, emergency response organizations (including police/fire services), and correctional institutions are currently operating under specific occupational safety and health regulations and guidelines applicable to their operations.

COVID-19 Mitigation Plan

Federal OSHA and most state-plan counterparts do not mandate a written transmission prevention plan specifically targeted at COVID-19; however, employers of workers with potential occupational exposures to COVID-19 (that is, working conditions that might cause transmission as opposed to community conditions that might cause transmission outside of the working environment) are expected to follow these practices:

• Assess the hazards to which the workers may be exposed.
• Evaluate the risk of exposure.
• Select, implement, and ensure workers use controls to prevent exposure, including physical barriers to control the spread of the virus; procedures to reduce the risk of transmission in the workplace (for example, social/physical distancing); and appropriate personal protective equipment, hygiene, and cleaning supplies.

These concepts are in line with usual occupational safety and health protocols that federal OSHA and the state-plan counterparts require employers to follow regarding any safety and health hazards to which workers are exposed. Their application in the context of COVID-19, however, likely calls for most employers to revise and enhance safety programs that existed prior to the pandemic outbreak.

A critical consideration for employers in implementing specific protocols is to become thoroughly familiar with OSHA guidance, the OSHA poster, state OSHA guidance if the employer is in one of the 26 states or territories that is governed by a state plan, CDC guidance, applicable state and local Department of Health guidance, and industry best practices in connection with the prevention of workplace transmission of COVID-19. Several of these websites, including OSHA, provide numerous references and links that will allow employers to search for information appropriate to their location, industry, and occupations.

Employers should be alert to industry- and occupation-guidelines that will likely proliferate as governments manage the conditions under which businesses will be allowed to gradually reopen. Employers that are members of industry associations, Chambers of Commerce, licensed or certified professions, or similar organizations should look to those organizations for sources of guidance and best practices.

Lastly, employers that have not been able to operate up to this point should examine federal, state, and local guidance that has been promulgated with respect to practices for so-called “essential” businesses and services (particularly in the non-healthcare setting) to get a preview of the types of practices that they may be expected to follow when they are permitted to reopen their businesses. These guidance documents are typically available on department of health agency websites.

General Safe Practices Employers Need to Consider

The following occupational safety and health practices to protect workers will likely be applicable to most employers allowed to reopen their businesses. More specific requirements may be imposed depending on the geographic location, industry, or occupation.

Safety and Health Communications Plan

Employers are required not only to have an occupational safety and health program, but must also be able to demonstrate that it is effective in practice, which means including a communication plan and creation of a safety culture.

In relation to re-opening their businesses, employers should strongly consider developing a communications plan around COVID-19 workplace safety that is more comprehensive and visible than usual, both to reinforce the importance of worker safety and to reassure employees and customers that the employer is taking it seriously and has a plan. The plan might include increased signage, employee safety meetings, safety training, periodic reminders concerning proper hygiene practices, auditing to make sure that safe distancing requirements are being observed, and prompt response to employee safety concerns.

Physical Distancing

Employers will be expected to implement physical distancing requirements or guidelines that remain in existence on federal, state, and local levels. This may require reconfiguring internal work spaces, traffic patterns, schedules, and staffing levels. Some employers, who are currently allowed to operate their facilities, have already reduced staff to part-time hours not only to the right size for their current operational demands but also to match the number of employees on-site at any time with the facility’s physical limitations on the ability of workers to social distance.

Some have introduced flexible scheduling not only with regard to the workday (to reduce the number of employees present at any one time), but also to shift some workers to a different workweek that includes Saturdays or Sundays (when the worker might have had a Monday through Friday schedule previously). Others are staggering break times, and some are setting up job rotations so that each worker operates remotely one or two days a week (when possible) thus reducing the complement of on-site workers on any given day.

Employers should discourage employees from sharing equipment and devices and institute protocols for handling, cleaning, and sanitizing equipment that must be shared.

Physical Barriers

To protect against workplace transmission, some employers will likely need to consider erecting physical barriers and controlling the number of employees that can access a particular area or workspace. We have already seen physical barriers become ubiquitous at customer-facing checkout counters and cashiering stations in grocery stores and other retail businesses that have been allowed to operate.

Personal Hygiene: Hand-Washing and Hand Sanitizer

Employers will be expected to remind workers (using posters, intranet sites, and other company communication channels) to frequently wash hands or, if soap and running water are not available, use an alcohol-based hand rub. Of course, employers will be expected to have adequate supplies of soap and hand rub available.

Screening/Monitoring

Most employers will voluntarily screen or be expected to screen employees in some fashion prior to initially re-starting work. At a minimum, this will require notifying employees that they cannot come into work if they have symptoms of illness. Employers may also need to regularly monitor whether their employees experience illness symptoms for example, before each workday, throughout the day, or at some other interval.

Precisely what must be done will likely vary by jurisdiction, industry, or occupation, and may range from employee self-monitoring (e.g. prohibitions on employees coming to work if they have any symptoms, or employees having to certify to their employers before coming into work that they are symptom-free) to active medical examinations (e.g. temperature taking or actual COVID-19 testing).

How testing and monitoring will be accomplished will likely depend on how quickly the necessary technology becomes readily available, particularly devices to allow self-monitoring. More intrusive screening options implicate additional potential risks for legal liability. Government mandates to engage in a specific form of screening will likely be paired with approved procedures for engaging in such screening. But for employers that wish to implement screening or monitoring practices beyond what is required by law or government-issued best practices, consultation with experienced employment law counsel is strongly advised.

Workplace Cleaning and Sanitizing

Employers will be expected to more frequently and thoroughly clean and disinfect all work areas, surfaces, restrooms, common areas, and shared equipment.

• If the employer relies on in-house staff to conduct disinfecting and cleaning, the employer must ensure that such staff are qualified and properly trained to perform such services and have appropriate personal protective equipment (PPE), cleaning materials and supplies, and safety training, including familiarization with possible chemical hazards.
• If the employer relies on an outside contractor for such services, the employer will want the contractor to verify its competency and compliance with the foregoing practices.
• If the employer is a tenant, the employer should confirm with its landlord or the landlord’s property manager that the level of custodial services will be tailored to the COVID-19 environment.

Personal Protective Equipment

At a minimum, employers must assess the extent to which personal protective equipment (masks, gloves, facial shields, and other) is appropriate to the hazards a worker can be anticipated to encounter, while keeping in mind any government guidance or mandates regarding the preserving or reserving certain kinds of equipment for medical and emergency personnel.

The employer needs to be sure that it has adequate supplies of PPE to provide to workers and has trained workers on when and how to safely use PPE, when to change PPE, and how to dispose of PPE. Employers should be prepared for employees to request PPE in situations where the hazard analysis and best practice guidelines do not indicate that PPE is required.

Generally speaking, employers should consider allowing employees to utilize PPE for comfort or convenience reasons (i.e., employee relations) unless it would create an undue expense or business disruption, or if using the PPE would itself create a hazard (such as an improperly fitted N95 or other respirator mask).

In some cases, an employee may request to use personal PPE in lieu of employer-provided PPE. Because such requests may require the employer to evaluate the efficacy and suitability of the substitute (including testing to be sure it is not contaminated), we generally discourage employers from allowing this option, absent specific government guidance to the contrary.

Clients, Customers, and Visitors

We anticipate that there will likely be restrictions on the presence of clients, customers, visitors, or other non-employees both as an occupational safety and health requirement and a public health consideration. Obviously, many businesses (such as hospitality and retail) that are not currently operating can only reopen successfully if they are allowed to have customers or clients present in the work area. Other businesses may be able to reopen successfully with little or no physical presence of clients, customers, or visitors. 

Consequently, the guidelines and restrictions when members of the public or third-parties are present may vary by industry and occupation as well as geography. Nonetheless, it is a consideration that nearly every employer that is allowed to reopen will have to deal with in evaluating potential workplace hazards and designing and implementing practices to protect its employees from transmission of COVID-19 in the workplace.

The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.

DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.