4-27-20 Client Alert: COVID-19 Re-entry plan

As we move (hopefully!) closer to the re-opening of our physical workspaces, it is important to consider the multitude of COVID-related issues that will continue to impact us. This pre-planning is particularly critical due to the anticipation that we may face a second wave of COVID during Summer 2020. The purpose of this Client Alert is to outline many of the matters that businesses will need to consider. In many ways, this Alert will raise more questions than provide answers but that is the intent as there is no one-size-fits-all approach. Each business must review your individual circumstances and craft a plan that will work for you.

1. Creation Of A COVID-19 Re-Entry Team

Due to the ongoing fluidity of this situation, and the expectation that we will continue to be impacted by COVID-related issues for the coming months, particularly if there is a resurgence in late Summer as the U.S. Department of Health has predicted, the creation of a multi-disciplinary team to oversee, triage and respond to issues as they arise will provide consistency (the "COVID Team"). You do not want to be making decisions in a vacuum or be addressing employee-related issues on an individual basis without a clear understanding of how those decisions may impact other employees or the organization as a whole. The COVID Team should include representatives from each aspect of your business, including but not limited to, Management, Human Resources, IT, and Marketing/Public Relations. It is the COVID Team's responsibility to ensure that the business has the most up-to-date information regarding legal obligations and best practices and that its re-entry plan is coordinated to be as seamless as possible.

2. Assume That Social Distancing/Facial Covering Requirements Will Continue

We do not yet know what restrictions individual Governors and/or the CDC will impose on employers when there is a general re-opening of physical (non-critical infrastructure) workspaces. However, it is anticipated, based on recent reports, and the existing CDC guidance provided to companies that have been operating during the pandemic, that regulations requiring protective facial coverings and social distancing may continue and in fact, be more widespread. As such, the COVID Team should keep abreast of the CDC/ State DOH guidance on this issue. OSHA has also issued initial guidance for employers on preparing workplaces for COVID-19. https://www.osha.gov/Publications/OSHA3990.pdf.

In the interim, however, businesses should ensure that they have sufficient face masks, hand sanitizer and disinfectant wipes for personal workspaces available. These items are being delayed by a number of retailers at the present time.

It will be necessary to determine and subsequently communicate to employees whether these policies (i.e., wearing facial coverings) will be mandatory or permissive (assuming that there is no governmental mandate).

If you have customers or clients that visit your offices, you may also want to prepare an external communication advising these individuals of what they can expect when visiting your worksite post-COVID. This will serve the dual purpose of letting these constituents know that you prioritize the health and well-being of them and your employees and letting them choose how comfortable they may be with your policies so that, if they wish to make alternate arrangements, they may do so.

Employers are also being encouraged to begin considering how they will satisfy social distancing obligations in the workplace. This may include, but are not limited to, alterations to the physical workspace (changing how workstations are set up or moving desks), staggering work schedules, utilizing a phased-in return to work system, and/or installing temporary barriers etc. (i.e., Plexiglas/solid screen dividers).

In order to abide by the anticipated social distancing guidelines, businesses will also need to consider ways to limit and/or avoid in-office gatherings of any significant size. This may include modifying the method of internal meetings. Consideration should be given to whether these meetings should be held virtually/telephonically for the foreseeable future. In addition, companies with cafeterias/lunchrooms or break rooms should also consider the most appropriate method for limiting seating/congregation in these spaces.

Further, it is important to recognize that when your employees attend meetings outside of your workspace they may be asked to comply with certain policies of the meeting host. These policies may be contrary to the policies that you enact. As such, thought should be given to ensuring that employees are clearly instructed as to what the employer's expectations are for such external meetings. For example, if the facial covering requirement is mandated by the employer and an employee attends a meeting where they are discouraged (directly or indirectly) from wearing one, how do you want them to address those circumstances?

3. Monitor Employees' Health

The CDC issued "Interim Guidance for Businesses and Employers to Plan, Prepare and Respond to Coronavirus Disease 2019". https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html

In addition, the CDC subsequently issued Interim Guidance for Critical Infrastructure Workers which outlines the CDC's recommendations for organizations' handling of possible/confirmed exposure for those workers who have remained on-site during the pandemic. https://www.cdc.gov/coronavirus/2019-ncov/downloads/critical-workers-implementing-safety-practices.pdf

The EEOC has also updated its Pandemic Preparedness Guidance to outline specific COVID related measures. https://www.eeoc.gov/facts/pandemic_flu.html

All of these publications provide useful information to assist employers in considering policies related to monitoring employees' health upon re-entry. This is an important step in limiting the likelihood of a COVID outbreak in your workplace.

One option is self-monitoring. This can be done in a number of ways, including requiring each employee to complete a brief survey before the start of each workday that asks them to report their daily temperature and to confirm whether they have any COVID-related symptoms. This method can be modified to capture more or less information, including a list of any potential symptoms the employee is experiencing (the "more") or to simply check a box that the employee is not experiencing any symptoms (the "less"). In many cases, the easiest way to implement this may be to make it a part of any computer log-in process or an auto-generated email when the employee logs in to the employer's system. For employees that do not have access to the company's email or computer system daily, employers may want to consider a hard copy form or may choose not to actively monitor employees' conditions on a daily basis.

Employers may also elect to be more active in the monitoring process, including implementing temperature checkpoints as workers enter the workspace. The EEOC has issued guidance confirming that requiring employees to submit to these temperature checks are lawful due to the severe nature of the pandemic. Employers who choose to implement these measures should consult with counsel to confirm that they have considered all of the legal issues related to properly conducting temperature checks. These include, but are not limited to, ensuring that such checkpoints provide for the safety of the individual(s) conducting the checks, considering the information to be recorded and the methods for doing so, recognizing the importance of ensuring the confidentiality of the "medical" information captured and pertinent wage and hour matters (i.e., payment to non-exempt employees for waiting time).

Recent EEOC guidance also specifically permits employers to require COVID testing (subject to more widespread availability) of employees and/or applicants.

However, obtaining the foregoing information, by whatever method you choose, is only the first step in the process. The more critical inquiry then becomes what do you do with the information that is received? For example, if an employee reports that he/she is symptomatic, what steps will you take next? Will the employee be sent home if they are on-site? Will they be immediately isolated until a decision can be made (which also requires that businesses consider the necessity of an isolation room)? Who will communicate with that employee? What measures will be taken to address other potentially exposed employees?

Under current CDC guidance for non-critical infrastructure businesses, if an employee is symptomatic, the recommendation is that anyone who has come in close contact (6 feet or less) of the individual for prolonged exposure (more than 10 minutes) be told to self-quarantine for a period of 14 days. In order to determine which employees could be impacted however, there also needs to be a process for obtaining information from the symptomatic employee before they leave the workspace regarding what employees they came in contact with (i.e., contact tracing questions). In the event that the symptomatic employee and/or other potentially exposed employees are advised by the employer to quarantine for 14 days, the business needs to determine and communicate a plan for their continued work (via tele-work) during this period, if the company intends to have them do so. Note that, in the event that they are not able to tele-work during the period of self-quarantine, the affected employees may be eligible for leave benefits under the Families First Coronavirus Response Act ("FFCRA") if the business is a covered employer.

If an employee reports contact with an individual who has tested positive for COVID-19, you will likewise need to consider implementing a policy outlining how you will handle those situations. Depending on the level of the contact, you may ask the employee to track their symptoms, require daily temperature checks (assuming you are not already doing so), ask the employee to self-quarantine or any combination of the above. In addition, determinations will need to be made relative to how you will handle other employees that may have come in contact with the employee, as outlined above.

We can also expect that there may be reports by co-workers who believe another employee is exhibiting COVID symptoms. It is necessary to have a plan in place for how these reports will be handled. It is likely a good idea to talk with the alleged-symptomatic employee to determine whether they believe they are exhibiting any symptoms, but perhaps also whether they may have other conditions that may be the reason for such symptoms. Obtaining this potential medical information, however, is a sensitive issue and should be handled in accordance with established protocols for its use and security.

4. Consider Return Of "Vulnerable" Employees

The federal government's "Opening Up America Again" plan https://www.whitehouse.gov/wp-content/uploads/2020/04/Guidelines-for-Opening-Up-America-Again.pdf provides for additional considerations regarding the return of "vulnerable individuals" to the workplace. “Vulnerable individuals” are elderly individuals or individuals with serious underlying health conditions including high blood pressure, chronic lung disease, diabetes, obesity, asthma, and those whose immune system is compromised such as by chemotherapy for cancer and other conditions requiring such therapy. In some circumstances, pregnant employees may also be included in this definition.

Employers are encouraged to consider accommodations to these employees, if requested, when the employer re-opens and/or to offer these employees the opportunity to delay their return. In order to do so, the employer must have a mechanism for determining whether someone falls into the "vulnerable individual" category. Employers may ask employees to self-identify or to provide a note from their physician indicating that they are a "vulnerable individual".

The ADA (and New York State Human Rights Law) however, requires only that an employer provide a reasonable accommodation to a qualified individual with a disability. It is unclear how the EEOC/DHR will treat COVID for purposes of the disability definition. Given that COVID is transitory in nature, it would generally not constitute a disability (similar to the common cold or flu). However, to the extent that it may impact an individual's breathing or other systems, it may in fact qualify. Accordingly, to the extent that you do not elect to have a consistent policy for how the business intends to address the return of "vulnerable individuals" as a whole, you will likely need to consider each impacted employee's circumstances on a case by case basis to determine a plan for their return.

5. Anticipate General Employees' Return to Work Issues

Apart from the "vulnerable individuals" discussed above, it is likely that businesses will face inquiries from other employees, including but not limited to the following:

Employees who request to tele-work due to ongoing caregiving issues (whether for a child or a family member, including situations where they may not qualify for FFCRA leave). One situation we have already begun discussing with some clients is what to do in a circumstance where schools are closed due to the normal summer schedule (not closed as a result of COVID) and an employee indicates that they planned to send their child to a summer camp program but that program is not operating this summer due to a COVID or non-COVID related reason;
Employees who feel "uncomfortable" returning to the physical workspace (whether due to general anxiety, concern about "vulnerable individuals" that they may live with etc.);
Employees who do not want to travel where travel is required as part of their position; and
Employees who are willing to return but desire a more 'flexible' schedule which will allow them to tele-work for some portion of the workweek given their ability to have tele-worked during the peak of the pandemic.

It is important that we consider how you will respond to these and other similar inquiries as a lack of consistency in response may result in significant morale concerns, may impact the organization's perception in the community and may create potential legal liability.

6. Consider COVID Policy Changes

Companies will also need to consider whether any of your existing policies need to be amended to address the COVID situation and whether new policies need to be enacted. These may include, but are not limited to the following:

Any change to PTO accrual/use/rollover policies?
Reporting of illness/Monitoring of symptoms
Do you want/need a formal tele-working policy?

Are you requiring the use of any specified platforms for your internal/external communications (consider Zoom hacking issue);
What are your expectations for at-home work spaces/productivity;
How do ensure the confidentiality of customer information, if applicable, and is it prudent to have employees sign a tele-work confidentiality agreement?

FFCRA/Other Leaves of Absence
Policies related to the use of facial coverings, gloves, cleaning & disinfecting of workstations

7. Review Opportunities For Employee Education/Communication

In times of crisis, employees may be particularly anxious about how their positions may be impacted. It is important that companies recognize these concerns and employ a "top down" approach to communication. While it may not be necessary, or prudent, to share every detail with employees, letting them know how the business is doing, and establishing an open line of communication with top leaders can create substantial goodwill.

There are also a number of areas where businesses should consider employee education/communication, including but not limited to the following:

What steps you are taking to provide a safe workplace;
What the company's plans may be if we experience a 2nd wave of COVID;
The availability of an EAP plan, tele-medicine options, preventative screenings etc.
How to keep the work environment safe (See, OSHA's Ten Steps All Workplaces Can Take To Reduce COVID-19 https://www.osha.gov/Publications/OSHA3994.pdf)

Ultimately, we do not know all of the situations that will arise as we attempt to re-open our workspaces in the days and weeks to come. However, taking proactive steps to ensure that you have considered those issues that we can anticipate will put you one step ahead of the game!

Please contact your Woods Oviatt attorney or the attorneys listed below for questions related to COVID-19 related issues.

For more information regarding Coronovirus (COVID-19) or to access all of our client alerts go to:

https://www.woodsoviattgilman.com/covid19

COVID-19 Multidisciplinary Crisis Group Co-Leaders