Reopening the Workplace? Here are the Dos and Don’ts.

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Experts answer some common questions about how to guide employees back into the workplace while also ensuring everyone’s safety. 

Just a few months ago, the term “re-entry” was commonly used to describe a space capsule returning to Earth’s atmosphere. 

Today, in the Age of the Coronavirus, re-entry means something different: figuring out the best way to return your employees to the workplace and restore some semblance of normal operations. 

Like bringing a spacecraft back from orbit, the stakes are high with workplace re-entry. Your employees’ health and safety are the greatest concerns, of course. But the health of your business is important, too.   

When and how your company manages this delicate transition depends a great deal on the type of industry you’re in, where your operations are located and the current impact of COVID-19 on those local populations. However, there are some general rules that all U.S. companies must follow when bringing employees back to the workplace.

The following questions and answers address the steps involved in returning employees back, with perspectives from legal and human resources experts. 

For a better understanding of these issues, we recommend you consult your legal counsel or an employment lawyer. Curtis Summers, a shareholder for global employment and labor law firm Littler Mendelson P.C., said re-entry into the workplace during a pandemic is enormously complex from a legal standpoint. It can involve tax issues, the Occupational Safety and Health Administration (OSHA), the Americans with Disabilities Act (ADA), a host of state and local measures, and much more.

“There’s just no way any employer, small or large, can field all the issues without somebody in their corner helping them,” he said.   

Common questions from employers about re-entry

Q: Some of my employees are more essential to working onsite than others. How do I go about prioritizing their return to the company first? Should I have my employees return in phases? 

The White House and other sources recommend a three-phase return to work, with employees who are most vulnerable to infection waiting until the third phase to come back. Guidelines in “Opening Up America Again,” a joint document from the Trump Administration and the Centers for Disease Control, defines vulnerable employees as either the elderly or people who have health conditions that include high blood pressure, chronic lung disease, diabetes, obesity, asthma, and immune systems that are compromised by chemotherapy for cancer and other conditions.

However, the three-phase approach from the White House and CDC are recommendations, not regulations. Danielle Rodenbough, a human resources consultant based in Seattle, said employees should think in terms of roles and responsibilities when deciding which workers should return on-site first. 

“The first thing business owners should do is to look at all their jobs and think, ‘who absolutely has to come back first, who do I kind of need to come back and who can work from home for a while, and phase them in that way,” she said.

Splitting days and staggering hours can be an effective way to bring team members back in some capacity. For example, if employees in a tile shop spend 60% of their time working directly with customers, the remaining 40% of their time could be done from home, helping to ensure a safer, socially-distanced work environment.

Summers said one way companies may get into trouble is if they fail to observe up-to-date guidance on safety protocol, which could give rise to employee complaints, OSHA issues and even negligence claims if an employee becomes infected. Companies can also find trouble if they prioritize who gets to come back to work based on age, perceived health risks or favoritism, Summers said. Employers should also carefully document how individuals are selected to return, and the business reasons behind those decisions, in case there is a legal challenge to the company’s plan. 

“There’s no one ‘right’ way to do (re-entry),” Summers said. “But there certainly are wrong ways.” 

Q: I’d like to get an understanding for how my team members feel about re-entry into the workplace. What are some questions I should and shouldn’t ask them about how ready they are to come back? 

Starting a dialogue with your employees about returning to work is a good way to build trust, but be mindful of the kinds of questions you ask them.

Rodenbough said the best approach is to check in with employees periodically and ask open-ended questions (“How are you feeling about coming back to the office?” “Do you have any concerns that we should talk about?”). At the same time, you should clearly and purposefully communicate how the company is planning re-entry and what the workplace will be like when employees return.

Directly asking if an employee has a medical condition that makes him or her vulnerable to COVID-19 can run afoul of ADA discrimination laws. 

“Even if well-intentioned given the pandemic, I think that crosses the line,” Summers said. “There are other ways to invite an employee to disclose that information.” 

Setting the right, empathetic tone is important when communicating with employees, many who may be reluctant to return to the workplace. 

“The wrong thing to say is, ‘I expect you back here on Monday,’” Rodenbough said. “The right approach is, ‘I really need you to come back and here are all the precautions we’re taking in the workplace.’”

Q: What am I responsible for providing to ensure a safe working environment for our people? What guidelines do I need to follow? 

As an employer, you’re always obligated to provide your people with a safe, reliable work environment. Of course, the coronavirus just raised the standards of how a safe workplace looks and feels. 

The safety guidelines issued by the CDC related to COVID-19 are not enforceable. However, employees who do not feel like the appropriate steps are being made to ensure their safety on-site could file a complaint with the Occupational Safety and Health Administration (OSHA). From there, OSHA could investigate whether a company is violating its general duty clause.

To reduce the risks of infections, many employers have stepped up regular sanitation treatments, limited the number of people who can use meeting rooms at the same time and taken steps to enforce six-foot social distancing rules. Some have even brought in nurses each morning to check employees’ temperature and screen them for COVID-19 symptoms.

At the very least, company leaders should pay close attention to local government and public health mandates, and make sure they continue to be compliant. For example, if a city enacts a rule that masks should be worn in enclosed areas, your employees should be wearing masks in the workplace.

“Other than making sure COVID-positive or symptomatic employees stay home, maintaining social distancing where possible, ensuring proper hand hygiene, and those kinds of requirements, there are no hard and fast rules for reopening,” Summers said. 

He pointed to recent mask orders across the country to note that the rules are “ever-evolving.” So, a key step in providing a safe work environment is keeping track of new orders and maintaining informative communication with employees.

Q: How much of an investment can I expect these safety measures to be? How costly will this be to my business? 

Protecting your workplace against a pandemic will be an additional expense, though it will vary depending on the size of your company and the type of industry you’re in. 

As you take steps to ensure a safer work environment during COVID-19, now is a good time to think about how your employees work together and use your space. By tracking Wifi logins and security badge data, you can gain a better understanding of your employees’ work habits and build a plan around making their use of the office more timely and efficient. 

In the coming months, many companies may learn that some of their employees can be just as productive working from home for at least part of the week. Allowing more remote work can help reduce your company’s real estate footprint, leading to future cost savings to help offset the expense of providing a cleaner, more sanitized workplace. 

Q: When my employees arrive for work, what can I do to ensure they are healthy without violating their privacy? 

Checking employees’ temperatures normally would be considered an unauthorized medical exam. But because of the pandemic, the U.S. Equal Employment Opportunity Commission (EEOC) has determined that temperature screening is permissible, in order to protect your employees from the virus. 

Similarly, during the pandemic, you can also ask employees questions about their symptoms or require self-reporting. However, you should take steps to ensure results of temperature checks and answers to questions are private, just like any other medical information.

Q: If an employee has an underlying health condition, what are my options in helping that employee return safely to the office? 

Making judgment calls on who may or may not be vulnerable to the coronavirus runs the risk of violating discrimination laws. Summers said the mere existence of another underlying health condition is not, in itself, a reason for an employee to not return to work. 

Also, if an employee has a condition that makes him or her vulnerable to COVID-19, but wants to come back to work anyway, the employer cannot deny that return to work based on the condition. “That’s just setting you up for an age, disability or other discrimination claim,” Summers said.  

If you’re concerned about a specific employee’s health risks, proceed with caution. A good approach would be to follow the same rules of what to ask and not ask in a job interview, Summers said. 

“If you’re interviewing a job candidate and you have a concern about whether they can perform a job function, you read what’s written in the job description: ‘Do you have any concerns about being able to perform these functions?’ It opens the door for the employee to express concerns or disclose any underlying condition without asking for medical information,” he said. 

Q: Many of my employees who have children are faced with the possibility that school won’t reopen this fall. What can I expect from them in terms of balancing that uncertainty with returning to the workplace?

Parents who are stuck without daycare during the pandemic can consider using the federal Families First Coronavirus Response Act (FFCR), which guarantees up to two weeks of paid sick leave, as well as an additional 10 weeks of paid family and medical leave at two-thirds of an employee’s salary. 

With uncertainty swirling around whether or not school buildings will open next fall in much of the country, some parents may take advantage of this new federal benefit, which remains in effect until Dec. 31, 2020. 

After FFCR leave is exhausted, however, employers get to determine if their workers are to receive additional leave to care for their children. 

“That’s subject to an employer’s discretion or policy,” Summers said.  

Q: If an employee gets COVID-19 while at our workplace, what are my responsibilities? What should I do?  

First of all, experts say it’s nearly impossible to determine whether or not an employee contracted a virus at most workplaces. 

However, if you learn that an employee at your workplace does have COVID-19, there are certain steps you should take to protect the health of your workforce: 

  • Instruct the COVID-19-positive or symptomatic employee to go home immediately. Provide that employee with applicable leave of absence forms. You can also request a return-to-work certification that must be verified by a doctor before that employee can return to the workplace, which provides that the employee is no longer a threat for infecting others. 
  • Inform your other employees of their possible exposure to COVID-19 in the workplace, without sharing the identity of the infected person. Also, your company may consider informing customers and vendors who may have had recent contact with the employee that they may have been exposed to the virus. 
  • Do a deep cleaning of the workplace, according to CDC and OSHA guidance.
  • Instruct any of your other employees who have COVID-19-like symptoms to stay at home.

Q: If an employee gets infected while on the job, are they eligible for workers compensation?

Traditionally, picking up a virus like the flu at work does not entitle employees to compensation. 

However, workers compensation rules can vary from state to state. Two things come into play: (1) many states have statutory provisions that indicate, when in doubt, disputes resolve in favor of providing workers’ compensation benefits, and (2) most states’ laws also require that the workplace present an “increased risk” or “risks peculiar” to the workplace as well. So, disputes on contracting coronavirus at work may be resolved in the employee’s favor, particularly if the employee works in a setting with a unique risk of contracting the disease (e.g., healthcare, grocery, and correctional settings).

Some states have issued orders or guidance on pandemic-related workers’ compensation questions. Therefore, Summers said, it is a good idea to regularly examine what the workers compensation rules currently are (and if there is any pending legislation) in the states where your company operates.

A final thought 

For many companies, returning employees to work will be a long, complicated process filled with course corrections and unpredictable shifts in the pandemic.

Rodenbough, who consults a range of small to large businesses, many of them in the hospitality industry, has already heard from several CEOs who just want the workplace to return to the way it was before COVID-19. That expectation can be dangerous, leading some companies to ignore precautions in a rush to bring back too many employees, too soon. 

“Business owners are going to have to be tolerant and compassionate on bringing people back,” she said. “I find that some business leaders are still longing for what was. I think they’re going to realize that the future is going to look a lot different.”