COVID-19 Task Force E-lert: Returning to Work

Authored by Gregory A. Hearing and Matthew A. Bowles

Best Practices for Reopening the Workplace

The best practice is to have a plan. Know what your reintroduction process will be and how you intend to implement it. Consider developing a policy and/or checklist, and consider altering certain physical aspects of your workplace to promote social distancing and avoid employee congregation, such as:

  • Spacing out chairs in conference rooms.
  • Installing temporary plexiglass barriers for reception desks.

Consider certain rules and/or policies to promote social distancing and avoid employee congregation, such as:

  • Limit the number of employees permitted in break areas.
  • Stagger shifts to minimize the number employees in the workplace.
  • Limit the number of employees permitted on the elevator at the same time.
  • Prop certain doors open (non-security and non-fire doors) to alleviate employee contact.

Consider certain changes to fundamental practices to promote social distancing and avoid employee congregation, such as:

  • Utilize a time clock app instead of a traditional communal time clock.
  • Limit the use of copy machines to select employees who can make copies and scans for the entire workplace, thereby limiting mass exposure to such machines.
  • Increase workplace cleaning with a focus on high traffic areas and workstations.

Know how you will bring your employees back:

  • Consider staggering your employees by bringing them back in waves.
  • May bring employees back based on essential positions.
  • May bring employees back based on a voluntary basis.
  • However you choose to reintroduce employees, ensure that you do not do so in a discriminatory manner (be especially wary of age discrimination).
  • Ensure the workplace is stocked with cleaning supplies and disinfectants.
  • Ensure availability of certain PPE as such may be necessary pursuant to OSHA and CDC guidance.
  • Prepare materials and signs which train your employees in the use of available PPE and cleaning products and remind them to utilize same on a regular basis.

EEOC Guidance

Per the EEOC, employers may currently take the following additional measures to ensure employee safety without violating the ADA:

  • Take employees’ temperatures prior to allowing them to enter the workplace.
  • Ask employees questions regarding whether they are experiencing COVID-19 symptoms.
  • Require employees to self-report any symptoms of COVID-19 or a positive COVID-19 test.
  • Employers may send employees who display any COVID-19 symptoms home, and may require such employees to quarantine for 14 days prior to returning to work. They may also allow an employee to present a negative COVID-19 test in lieu of the 14 day quarantine.
  • Employers may require COVID-19 testing in the workplace once testing becomes more readily available, and may require employees to wear PPE.
  • Employees may seek a reasonable accommodation such as non-latex gloves (reasonableness may depend on the availability of such gloves).

OSHA Considerations

Employers must utilize caution when addressing employees who refuse to work due to coronavirus fear and ensure they are taking the necessary precautions to ensure a safe work environment.

OSHA recently released guidance regarding the four COVID-19 exposure threat levels:

  • Low – The working environment is such that employees have minimal occupational contact with the public and/or other employees. Employees in this category do not usually require PPE other than what they would normally use to perform their job.
  • Medium – The working environment is such that employees may come within six feet of individuals who may be infected with COVID-19 but who are not known or suspected COVID-19 patients.
    • Employers must utilize their best judgment in determining which PPE they must provide their employees.Employers should consider the most recent CDC guidance and PPE usually includes a face mask for those within close proximity of other workers and/or gloves for those sharing tools and equipment.
    • Employers may also need to train and instruct employees to clean common tools and equipment and provide cleaning materials for same.
  • High – Workplaces where there is a high potential for exposure to known or suspected sources of COVID-19.  Includes health care facilities, medical transport, and funeral homes and mortuaries.
  • Very high – Workplaces with high potential for exposure to known or suspected sources of COVID-19 during specific medical, postmortem, or laboratory procedures which involve aerosol-generating procedures on patients known to have or suspected of having COVID-19 or handling such patients’ specimens in a laboratory setting.

PPE for high and very high exposure risk level workplaces may include gloves, gowns, fluid-resistant coveralls, aprons, face shields or goggles, face masks, and/or respirators. PPE is dependent on specific circumstances and employers should provide training regarding when and how to use various forms of PPE.

OSHA recently released guidance to reduce the risk of exposure in the workplace:

  • Encourage workers to stay at home if they are sick.
  • Explore possibilities of flexible worksite and work hours to increase social distancing.
  • Promote and provide a location for frequent and thorough hand washing.
  • Provide customers and the public with tissues and trash receptacles.
  • Discourage workers from using other workers' phones, desks, offices, or other work supplies and equipment.
  • Regularly clean and disinfect surfaces, equipment, and other elements of the work environment.
  • Encourage respiratory etiquette.

Preparing for COVID-19 Contamination

It is likely that one of your employees will eventually become infected with COVID-19. Employers should prepare a contingency plan that includes the following measures:

  • Instruct the COVID-19 positive employee to stay away from the workplace until the employee is cleared to return to work by the employee’s health care provider. This may require a fitness for duty note (to include a negative COVID-19 test if testing is readily available).
  • Remotely interview the employee to identify other employees with whom the employee may have come into close contact with.
  • Notify employees who are identified as coming into contact with the infected employee. Only identify the infected employee if he or she waives confidentiality. Most employees are willing to do so as they care about their fellow employees and want to limit the potential exposure to COVID-19 as much as possible.
  • Send those employees who had close contact with the COVID-19 positive employee home. Have them quarantine for 14 days or seek clearance from a health care provider prior to returning to work.
  • Consider notifying local health authorities about the confirmed case. Conversely, some agencies may contact the employer if the agency is engaged in contact tracing.
  • Have the workplace professionally cleaned per CDC guidelines.

Dealing with Difficult Employees

Employees may not refuse to work on the sole basis that they are afraid of catching the coronavirus. Employers may discipline and/or terminate such employees for their refusal to follow direction. But, employers must remain cautious of employees’ rights to a safe workplace and the right to protection from retaliation.

On April 8, 2020, OSHA issued a press release reminding employers that it is illegal to retaliate against employees because they report unsafe and unhealthful working conditions  during the coronavirus pandemic:

  • If you encounter a situation where an employee is refusing to work due to COVID-19 concerns, we recommend that you consult with legal counsel.
  • There is a fine line between an employee engaging in protected activity or unprotected activity.
  • Employers should avoid making such close calls without guidance from counsel.
  • If an employer is following OSHA and CDC COVID-19 guidance and taking the proper safety measures, then the employer is in a stronger position to handle a difficult employee.