Reopening the Workplace: Timing, Policies, Considerations, and the Law

May 4, 2020

By: Gil B. Selinger and Erica A. Jacobson

As employers familiarize themselves with the new “safer-at-home” orders, and as many states begin reopening their economies, we enter the next phase of the unknown with the COVID-19 pandemic. While the weeks ahead will present unforeseen obstacles, there are many issues employers should consider for a smooth transition back to the office. This article will review issues to consider, potential solutions, and practical implementation strategies.  

Employers should begin by reviewing new and existing local, state, and federal regulations to inform their decisions. Other important regulations to consider include, the Americans with Disabilities Act (ADA) and the Occupational Health and Safety Act (OSH Act).  

Local, State, and Federal Reopening Regulations 
The ever-changing regulatory maze can seem overwhelming, particularly for employers with operations in multiple states. Employers should assess reopening directives in every jurisdiction applicable to their operations including, federal, state, and local directives. 

First, consider the federal rules for reopening. The White House Coronavirus Taskforce (Taskforce) announced its plan to reopen America on April 30, 2020. Employers need to monitor the federal guidelines for a possible extensions, new restrictions, and closures, if another outbreak were to occur. 

Next, reopening timelines and rules will need to be specifically tailored to each business location. Governors, mayors, and county commissioners can all make decisions for their respective jurisdictions and these governing bodies might not be aligned. Each set of guidelines will incorporate a framework of rules for the reopening of various businesses and industries. Employers should focus on the most restrictive governing body to form their plans around reopening operations, while confirming that the most restrictive directive has the authority to preempt other less restrictive directives. It is also important that employers prepare for last-minute changes in laws as this situation continues to be fluid. Even where states and cities that have formed coordinated plans for reopening, an employer should not rely on information from a neighboring jurisdiction. 

Finally, some counties and local governments have coordinated health departments which have the power to make rules that effect multiple jurisdictions, such as the Tri-County Health Department covering Adams, Arapahoe, and Douglas County. It is important to check all sources of regulations.

In Colorado, the Governor’s Safer-At-Home Order, effective as of April 27, 2020, lifts restrictions on specified business operations in certain circumstances. After the Order was issued, many counties in the Greater Denver Metropolitan Area extended their Stay-At-Home Orders, which is permissible under Colorado law. In Colorado, more restrictive county and local orders are permitted to preempt the statewide order, but less restrictive orders are not permitted to do so. It is also important to note that this Colorado rule is not a standard rule across the country. In some states and jurisdictions, such as Texas, local government orders cannot override or be more restrictive than the state order; the state order will always preempt any competing local order. 

Americans with Disabilities Act (ADA) Compliance 
Given the unprecedented challenges COVID-19 presents to employees and employers, the Equal Employment Opportunity Commission (EEOC) issued new guidance for compliance with the ADA on April 17, 2020. The EEOC specifically addresses precautions employers can take to ensure workplace safety, while protecting the rights of employees. 

For example, the EEOC confirmed that employers can require returning workers to wear facemasks, gloves, enforce frequent handwashing requirements, and social distancing practices.  Many employers have elected to require testing before allowing employees to enter the workplace. The new EEOC guidance indicates that temperature checks and symptom checking are ADA Compliant if the policies are implemented properly. Some employers have expressed the intention to require more stringent testing procedures, including antibody testing, before allowing employees to return to work. The EEOC guidelines do not address these types of policies, and employers should consult with employment counsel.

Some employees may need reasonable accommodations to meet these requirements, including those employees that are high risk. Employers should also consider special accommodations for vulnerable workers, such as pregnant women, to avoid ADA claims. The EEOC encourages flexible arrangements for employees who do not want to, or are unable to, return to work. Employers should be cautious in denying remote working requests if an employee maintained their performance during the stay at home order. It may be challenging to argue against this accommodation unless it presents an undue hardship.

Occupational Health and Safety Act (OSH Act) Compliance 
The Occupational Health and Safety Administration (OSHA) has not amended the OSH Act to include COVID-19-specific standards, but OSHA has issued new COVID-19 planning guidance. The new guidance is advisory in nature, and it does not create new legal obligations or change the existing obligations under the OSH Act. However, the guidance gives employers practical advice on how to identify COVID-related hazards in their workplace and how attempt to reduce these risks. 

Employees may feel uneasy about returning to work amid COVID-19 safety concerns, so employers should communicate clearly and explain the safety precautions that have been put in place to reduce these risks. Signage, training, periodic reminders of best practices, and employee updates can help alleviate employee fears. OSHA regulations contain a "General Duty Clause" requiring workplaces to offer environments that are "free from recognized hazards that are causing or likely to cause death or serious harm to employees." If your business reopens and you have employees who do not feel safe in the current work environment, it is advisable for businesses to work to accommodate that employee’s concerns. This includes, permitting them to work remotely, rather than risk a complaint, lawsuit, or inquiry from OSHA.

Employers must include any COVID-19 related workplace incidents on OSHA 300 logs, but events triggering the recording requirements vary by industry. In some industries, including healthcare and emergency response, employers must record cases of COVID-19, if it is a confirmed case of COVID-19, the case is work-related, or the case involves one or more of the general recording criteria. 

In all other industries, employers are only required to record cases of COVID-19 when “There is objective evidence that a COVID-19 case may be work-related. This could include, for example, a number of cases developing among workers who work closely together without an alternative explanation,” and the information was “reasonably available” to the employer, including “information given to the employer by employees, as well as information that an employer learns regarding its employees’ health and safety in the ordinary course of managing its business and employees.”

Revisit Your Insurance Policies
Employers should review their insurance policies and consider discussing COVID-19 coverage with their insurance brokers. Policies may offer benefits overlooked by some employers. For example, employment practices liability insurance may offer some coverage for COVID-19-related claims including those for wrongful termination, failure to provide leave, OSHA violations, or similar violations of employment laws. Property insurance may cover some COVID-19-related risks.

Workers’ compensation insurance may cover COVID-19 cases resulting from exposure at work. Some states have addressed this issue directly and mandated that COVID-19 be covered by workers’ compensation programs. Employers should check their policies and the rules from every state in which they have a presence. 

Develop Policies and Protocols 
An employer can prepare strategies to resolve foreseeable short- and long-term issues related to COVID-19 before reopening. These plans will likely include revising existing policies to reflect the new realities of the COVID-19-era work environment and developing new policies and protocols where existing policies are lacking. Employers should consider the regulations discussed above while developing policies and procedures and while addressing practical matters discussed below:

  • Acquire Supplies: Employers should order supplies now, including forehead thermometers, gloves, masks, sanitizer for personal use and communal spaces, Clorox wipes, and toilet paper. When employees return, employers should make sure employees know where to find these items.
  • Prepare the Office: To reduce the risk of transmission, employers can modify workspaces to facilitate social distancing, keep heavy traffic doors open, develop a procedure for safe delivery of supplies, copies, and mail to workstations/offices, complete an initial deep clean and ongoing cleaning/sanitizing and maintenance, develop a kitchen protocol, update posters on CDC recommendations, and update other office policies and signage. Additionally, employers should consider temporarily restricting visitors. 
  • Determine an Office Access Policy: Employers need to determine if they will require gloves, masks, and testing. While developing these policies, employers should review the EEOC’s guidance on the issue and confer with counsel. Employers should also announce a response protocol in the event an employee tests positive for COVID-19.
  • Ensure the Building is Prepared: Office buildings may not be fully operational in the early stages of reopening. Employers should consider adjustments to building access, elevator protocols, cleaning crews, lighting, HVAC, parking, deliveries, and the building’s visitor policy.
  • Develop Travel Policies: Employers should develop and communicate travel policies, including restrictions on commuting by public transportation, air travel, and vacation air travel. As an alternative to travel restrictions, employers may elect to require a mandatory period of self-quarantine following travel. 
  • Staffing Model and Scheduling: Employers will need to determine who must return to work, who should return upon request, and who needs permission to return. Employers should make these decisions with an eye toward the ADA rules and the EEOC’s new ADA guidance. Remember, requests for accommodations, including requests to work from home, may be scrutinized. 
    • Announce a Reopening Schedule: A reopening schedule may require different teams and rotations. Flexible schedules should be considered. 
    • Monitor and Modify the Schedule as Necessary: Employee input will help determine the employees prepared to return to the office. Employers should communicate policies around flexible schedule requests. Employers should monitor the schedule and make changes as the guidelines shift, including changes to the percentage of the workforce permitted in the office. 
    • Childcare: Employers should consider those with childcare issues. Employers can monitor programs for children including sports programs, camps, and school district reopening in the fall, and communicate these options to employees as they become available. 
    • Consider Well Being Initiatives: To foster well-being, employers should consider communications on mental health awareness and help options. Updating employees on health benefits can alleviate additional costs to the employer.  

Once an employer addresses the immediate issues, there will still be long-term challenges to address, including continued accommodations and workplace flexibility, managing a disrupted workforce, business model adaptations, and investments in training, technology, and communication. A thoughtful approach to these immediate issues will put employers in a good position to confront long-term challenges as they arise.