Although shutdowns or moves to an all-remote workforce happened quickly, many employers are able to re-open with the benefit of more time to plan. As you prepare developing plans for your workplace, keep in mind a wholly new environment exists. Local or state governments have or likely will impose new restrictions; new standards have been established by recently issued health and safety guidance; and in many cases new federal, state, and local laws now apply.
Below, we provide a checklist of considerations for employers planning the return to more normal operations. Some local restrictions require many of these issues to be addressed in the form of written policies or protocols, and thinking through the list is a good first step to developing a plan specific to your organization.
Health and Safety
Many governmental orders permitting a reopening of workplaces include restrictions to help avoid transmission of COVID-19. General guidance from public health agencies provide recommendations as well.
- Local Orders and Guidance: Review government orders to confirm specific health and safety requirements and evaluate applicable recommendations or guidelines.
- Personal Protective Equipment (PPE) for Employees: Determine whether PPE is required or recommended for your business and, if so, what is available.
- PPE for Visitors: Determine whether PPE is required for visitors and/or whether your business can make PPE available.
- Social Distancing: Review your workplace to ensure individuals can maintain adequate social distancing throughout the day. Consider whether signage, floor markings, or other precautions should be added.
- Physical barriers: In congested areas where social distancing is not possible throughout the work day, limit which employees can access an area and place dividers to separate co-workers from each other and/or customers/visitors.
- Cleaning/Disinfecting: Determine protocols for cleaning and disinfecting, and ensure they are compliant with any applicable requirements.
- Common Areas: Consider whether to make common areas open and available, and how they will be maintained and disinfected throughout the day.
- Personal Hygiene: Display posters and reminders about frequent handwashing and encourage employees to engage in such behavior. Provide adequate supplies including hand sanitizer at convenient locations.
- Special Industry Restrictions or Advice: There are unique requirements and/or guidance for many industries, from retail and hospitality to healthcare and construction. Confirm whether industry-specific rules exist for your workforce at the state, local or federal level, and look into any best practices specific to your industry.
- Health Screenings: Determine whether your business should (or must) engage in any health screenings when returning employees to work. Legal issues need to be considered (i.e., employee privacy rights, local requirements) and employers need to establish clear rules for the scope of any screening, frequency, and reporting obligations..
- Temperature Taking: Consider how to take employees' temperatures and who will do it. Training is likely needed regarding how, where, and with what equipment.
- Information Retention: Make a plan for what you will do with any health information gathered. Remember to consider any local requirements that may specify documentation to be developed or maintained (i.e., health screening logs).
- Rotating Schedules: Determine whether employees can or should be returned to work on rotating schedules to ensure social distancing. Legal issues and considerations may include wage and hour and discrimination laws.
- Training: Develop a plan for training your employees to ensure they are aware of the health and safety protocols and other rules and restrictions that are applicable to them and to customers/clients. Consider the best strategy for conducting relevant and timely trainings. Micro-trainings are a good option here.
If your business laid off portions of its workforce, you may not be able to or want to hire all of your employees back. Or, if your employees were furloughed, your business may only return employees to the workforce in smaller groups.
- Selections: Be careful. Figure out what your business needs first, then determine a non-discriminatory strategy for making rehiring decisions. Work with your lawyer to finalize your plan and document your plan and your decisions.
- Collective Bargaining Agreements: Consider whether a CBA affects selections for return, assignment to the same or new duties, or the amount of notice required.
- Vulnerable Populations: Consider how best to protect (legally) populations particularly vulnerable to COVID-19. Excluding them from rehire is fraught with peril.
- Medical Certifications: Consider whether medical certifications can or should be required prior to return to work (this will be industry specific).
- Video Interviews: Consider whether video interviews can help your process and prepare for the pitfalls.
- New Paperwork: Consider the paperwork necessary to document the return to work. This will depend on whether you are rehiring employees or ending a furlough. There may be opportunity to update contracts or a need for new offer letters if the terms of employment have changed. Some documents can be signed electronically, but others we recommend be “live” (arbitration and class action waivers, for example).
- Wage Statement Notices: Make sure your wage statements are up to date.
- New I-9s: Consider whether you need new I-9s and if you do, make sure you understand how to check verification documents in a remote work environment.
- Employees on an Employer-Sponsored Visa: Check in with your immigration attorney to determine whether visas have been affected by layoff or furlough.
- Employees on Leaves: Managing leaves is complex to begin with, and the COVID-19 world is even more complicated. Be sure to consider existing workers compensation claims, FMLA and/or other leaves of absence.
- Effect on Unemployment Benefits: The interplay of CARES, PPP Loans, and Unemployment is complicated. Be sure you understand how these all interrelate and communicate compassionately and clearly with employees. Employees will want (and need) to know what happens to their unemployment if the employee is only partially reinstated, but unemployment benefits can be specific to an individual’s circumstances so employers need to draw the line between being helpful and making promises or representations about matters they do not control.
The Effect of the Time Away
Benefits programs and leave rights may be impacted by the length of time an employee was away from work, as well as whether he or she was laid off or furloughed.
- Retirement Plans: Evaluate eligibility and vesting rights for those who were laid off or furloughed and are now returning.
- Welfare Plans: Evaluate employee welfare benefit plans to determine what happens once employees are reinstated after layoff. For example, consider whether waiting periods might be imposed, Affordable Care Act requirements for group health plans, starting dates for the plan, and the impact of any partial reinstatement.
- Health Insurance: Evaluate employee health insurance plans to determine the impact of reinstatement after layoff. For example, consider whether there is any waiting period, when the employee(s) must start on the plan again, and the impact of partial reinstatement.
- Leave Rights: Consider employee leave rights given the break in service.
- Vacation: Determine whether employees’ accrued vacation must be reinstated upon return to work (assuming it was not paid out).
- Sick Leave: Determine whether any sick leave the employee earned prior to layoff must be reinstated.
- Childcare Needs: Determine requirements, preferences, and protocols for responding to leave/remote work requests to care for children who remain at home due to school closure or lack of child care availability.
New COVID-19 Protected/Paid Leaves
Aside from the expansion of the Family and Medical Leave Act, several states and local governments passed new workplace protections requirements.
- New Federal Leave (FFCRA): Determine whether and how the FFCRA will apply going forward, including the need for potential policy revisions.
- New State or Local Leaves: Evaluate any new rights established over the past few months, including the need for potential policy revisions.
- New Public Health Orders: Evaluate whether any new protections have been established by executive or other health orders.
Continued Remote Working
Some of your workforce may continue working remotely on either a full-time or part-time basis.
- Wage and Hour Issues: If some employees will continue working from home, determine whether any wage and hour issues need to be addressed for the long term.
- Teleworking Agreements: Determine whether your organization needs or wants to implement signed agreements with employees, including key issues to be addressed in such agreements.
- Expenses Reimbursement: Consider whether your organization is required or willing to reimburse employees for some of their telework expenses.
- Unionized Workers: Evaluate common legal issues for unionized employees, under your CBA or otherwise.
Planning for Unique Situations
When employees are asked to return to their previous work environments, they are likely to have a range of reactions, perhaps because of their unique vulnerabilities or sensitivities. Smart employers are prepared to address these in advance.
- Vulnerable workers: Establish a plan and protocol for managing employees with underlying health conditions and those identified as particularly vulnerable in the event those employees do not want to return or provide a note from a medical provider.
- Positive Tests: Establish a protocol for responding to a positive test result or an employee showing/reporting symptoms, including but not limited to workplace contact tracing, required reporting to government entities, disclosure to coworkers and other third parties, return to work requirements, etc.
- Refusal to Perform Legitimate Assignments: Be prepared to respond to employee refusals to perform legitimate assignments that may raise health or safety concerns. In a unionized environment, evaluate relevant CBA implications.
- Refusal to Return: Be prepared to respond to employee refusals to return to work or demands for indefinite teleworking arrangements due to fear of exposure. The response plan may differ for individuals who are not identified as vulnerable by the CDC or a medical provider.
- Employee Raises or Group of Employees Raise Safety Concerns: Prepare to address group concerns with an eye toward protected activity and concerted activity rights.
- Reduction in Pay: Consider whether any reductions implicate legal rights or restrictions, including those arising under applicable labor laws or a CBA.
- PPE Accommodations: Prepare to address employee requests for accommodation relating to personal protective gear, including assessing available resources.
- Failure to Comply With Precautions: Consider establishing a baseline for discipline that will be imposed for employees who fail to comply with safety precautions. Consider training employees and supervisors on disciplinary expectations as well as any applicable fines or criminal penalties associated with local orders and restrictions.
Employers with unionized workforces will need to be particularly mindful of the role of the union and the company’s related obligations.
- Bargaining Obligations: Confirm the scope of potential bargaining obligations associated with any planned or proposed actions or the effect of those actions.
The plans and protocols for addressing these topics may differ for your business based on its location(s), industries, size, and workforce. Moreover, federal, state, and local guidance (and requirements) change frequently.
Employers are wise to develop a plan and then adjust as reopening nears and even after the business has re-opened. Written plans can serve as a resource for employees, reassurance to customers, and protection in the event of a health and safety audit. But remember, training employees on a written plan can be just as important as developing the plan itself.
Davis Wright Tremaine attorneys remain available to help employers with any of these issues – or even new issues yet to surface.
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.