Reopening Business: 5 Potential Employer Pitfalls

By: Storrs Downey & Jessica Jackler

As businesses contemplate reopening, there are many legal and personnel issues to first consider. It is imperative that employers come up with a detailed plan well in advance of reopening its doors. This article explores some potential pitfalls employers should be aware of and address as part of their return-to-work plan.

  1. Failing to Consider Employees’ Fears

    Some of your employees are going to be scared to return to work and rightfully so. No one knows what the next phase will bring or whether reopening businesses too soon will result in a “second wave” of COVID-19 cases. Employees who have been quarantined at home in a safe space will now have to potentially get back on public transit and return to a populated worksite.

    This is why it is critical that employers openly communicate with employees prior to reopening about what steps and measures are being taken to keep them safe. Simply reopening and having employees show up to work without first implementing a detailed plan and communicating that plan is a mistake from an employee-relations and legal standpoint. It could result in decreased employee morale and productivity. The better practice is to hold a virtual meeting with your employees prior to reopening and explain what measures will be taken to keep them safe at work and address questions and concerns.

  2. Ignoring Accommodation and Leave Issues

    When you decide to reopen, some employees may face barriers to return to a physical office space. Some employees may have young children at home and have no childcare options. Other employees with underlying health issues or mental health conditions may be fearful to return. Employers have a legal obligation to engage in an interactive process rather than assuming these employees cannot return to work–or worse–immediately taking disciplinary action. Employers may need to assess if these employees are eligible for leave under local, state and/or federal law, including the newly enacted Families First Coronavirus Response Act.

    Moreover, if you plan to require employees wear masks, keep in mind you may need to address accommodation requests for employees that have health conditions which impact their ability to wear a mask. If employers ignore these important issues, they could be in violation of several state and federal laws.

  3. Having All Employees Return to Work At Once

    Depending on the size of your workforce and your physical workplace, employers may need to stagger employees’ shifts to reduce the number of people at your worksite at one time. Employers may also think about which employees must physically be in the office versus who can continue to telework.

    The physical layout of your office may need to be adjusted to comply with social distancing requirements and other safety recommendations. This may include reconfiguring desk locations, mapping out foot traffic directions, and installing clear barriers in exposed spaces like reception areas or where there are adjoining desks and workspaces.

    The physical worksite should also have thorough cleaning procedures in place. Businesses that are part of a shared building should consult with the management company about cleaning procedures to understand what will be done on a daily basis and whether that needs to be supplemented. Hygienic products like tissues, hand soap and hand sanitizer should be made available to employees around the office.

    You will also want to think about limiting foot traffic in hallways, kitchens and restrooms to avoid crowding. Another recommendation is requiring employees to bring lunch to work and discouraging unnecessary outings for coffee and errands during the workday.

  4. Running Afoul of the Law When Screening Employees

    The EEOC has made it clear that temperature screenings are permissible during the pandemic. Employers may also ask employees if they are experiencing symptoms of COVID-19 and other questions about off-duty conduct such as whether they have traveled to certain places and if they have been following social distancing guidelines, etc.

    Although an employer is allowed to ask such questions and take temperatures, you will need to come up with a protocol before issuing questionnaires and administering these screenings. For example, an employer needs to plan who will take the temperatures, where will they be taken, whether the results will be logged, where will they be kept, and most importantly, what steps it will take if an employee has an elevated temperature or other symptoms.

    While there are many factors that go into screening employees, there are some significant procedures that must be followed.

  • First, the screenings should be done in a private space and the results kept confidential from other employees.
  • Second, any logs or other recorded information about the employee’s health, including temperature and symptoms, must be kept in a separate confidential file since the results are considered confidential medical information under the ADA.
  • Third, employees’ time spent waiting to be checked and during a screening is compensable working time and must be paid. Employers should have a system in place to ensure that all time is counted and paid related to any temperature screening or self-reporting practices that employees must complete prior to starting their job duties.
  • Lastly, it is very important that employers understand that not every person with an elevated temperature has COVID-19 and likewise, persons may be asymptomatic. Temperature readings may also be inaccurate and could be influenced by different factors unrelated to COVID-19.

Being Inflexible
    The return-to-work issues associated with the COVID-19 pandemic are unprecedented and
    unchartered territory, so employers must extensively plan their protocols before reopening
    to help reduce the risk of employee claims. It will require a lot of flexibility and adapting
    quickly in the face of certain issues like having a symptomatic employee on-site or receiving
    more leave requests than expected. Your policies may need to change temporarily, in
    addition to the way you conduct business.

Practice Tip: This article has only scratched the surface on potential pitfalls and legal issues to consider. If your organization needs assistance with preparing return-to-work protocols and/or addressing employee relations issues, please contact us.

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