Reopening business amidst COVID-19: No one-size-fits-all approach for managing employment law risks

As states continue to announce plans to reopen businesses, employers face a number of operational and employment issues that can lead to legal exposure if not handled properly. Below are some key issues and concerns employers are grappling with as they develop plans to safely reopen and manage the return of their workforce.  

Health and safety considerations
A primary concern for employers as they begin to reopen businesses is the safety of their employees. The Occupational Safety and Health Administration (OSHA), which requires employers to maintain a safe work environment, and the Center for Disease Control (CDC) have issued the following recommendations.

• Actively encourage employees to stay home if they are sick.
• Discourage workers from sharing phones, desks, offices, and other work tools and equipment when possible.
• Reconfigure physical workspaces by rearranging workstations to space out employees; place barriers between workspaces; close or modify common areas and high-touch surfaces.
• If feasible, establish alternating days or staggered shifts to reduce the total number of employees in a facility at a given time.
• Provide appropriate training regarding business-essential job functions and worker health and safety, including proper hygiene practices and the use of any workplace controls, including personal protective equipment (PPE).
• Limit face-to-face meetings and encourage the use of videoconferencing.
• Provide appropriate PPE, if available, such as face coverings and gloves.
• Promote frequent and thorough hand washing and cough etiquette. 

Additionally, a number of states have issued return to work plans or orders with extensive safety requirements. For example, Ohio’s reopening plan sets forth specific requirements related to distancing, staggered attendance and daily symptom assessments. It also requires that employees, with limited exception, wear protective face coverings. Violations of state orders can result in civil penalties or even criminal charges. Therefore, employers should closely review the reopening requirements for the state(s) in which they operate and develop a plan to ensure compliance.

Temperature checks, symptom inquiries and COVID-19 testing
Since the start of the pandemic, Equal Employment Opportunity Commission (EEOC) guidance regarding health-related inquires and employer testing has evolved to give employers significantly more latitude than normally permissible. The EEOC has indicated that it is permissible for employers to:

• take employee temperatures or require employees to conduct self-checks;
• ask employees if they are experiencing COVID-19 symptoms, such as fever, chills, cough, shortness of breath or sore throat;
• send employees home if they display symptoms of COVID-19;
• require employee’s to obtain a doctor’s note certifying their fitness for duty because such inquiry would not be considered disability-related under the Americans with Disabilities Act (ADA);
• administer COVID-19 testing to employees before they enter the workplace.

Before taking temperatures or doing any diagnostic testing,  employers should consult with counsel to ensure compliance with all state and federal regulatory restrictions. The types of questions asked and the types of tests used can trigger confidentiality, privacy, collective bargaining, workplace safety and other employment requirements.

Whistleblower claims
In recent weeks, there have been several highly publicized incidents of employees claiming that they are being forced to work in unsafe environments or that they have been retaliated against for reporting health and safety concerns related to COVID-19. As a result, on April 8, 2020, OSHA issued a statement “reminding employers that it is illegal to retaliate against workers because they report unsafe and unhealthful working conditions during the coronavirus pandemic.” Employers should carefully review and comply with the evolving COVID-19-related restrictions and safety measures and provide regular communications to employees about the steps they are taking to keep the workplace clean and safe. Employers should also encourage employees to internally report any health and safety workplace concerns immediately and train managers on how to respond to complaints.

Layoffs, reductions and discrimination claims
In order to absorb the economic impact of the COVID-19 pandemic, employers have implemented and continue to evaluate reductions in salaries or hours, furloughs and layoffs. To avoid potential discrimination claims, employers should base these decisions on well-documented, objective business considerations and criteria and form a committee to choose who is selected for furloughs or layoffs when possible. Employers should also keep in mind alternative options, such as SharedWork programs, which allow employers to reduce hours by as much as 50 percent while their employees collect partial benefits to replace a portion of their lost wages. Under the Coronavirus Aid, Relief, and Economic Security (CARES) Act, the federal government is covering these unemployment benefits costs through December 31, 2020, for states (which includes the majority) with SharedWork programs.

Requests to continue at home arrangements
Even with safety measures in place, employers should expect that some employees may ask to continue work from home arrangements for a number of reasons, including fear and anxiety related to COVID-19 or lack of childcare.

While generalized fear of COVID-19 in the workplace is not a disability, the fear could be a symptom of a covered disability under the ADA. Therefore, before denying an employee’s request to continue to work from home because they are afraid of contracting the virus, employers should engage in the interactive process by asking questions to determine if the employee has a disability under the ADA. As part of the interactive process, the employer should discuss workplace protocols that are in place to reduce the risk of COVID-19. If the employee still refuses to return to work, the employer may require a medical certification. Given the current burden on medical providers, employers can provide a temporary accommodation on an interim basis while awaiting receipt of medical documentation.

Additionally, while states are issuing plans for reopening businesses, most states have closed schools for the remainder of the school year and have not yet reopened daycares or announced plans for summer camps. Employees who need leave to care for children because of school and daycare closures may be eligible for expanded FMLA or sick leave under the Families First Coronavirus Response Act (FFCRA) or for pandemic unemployment assistance under the CARES Act. Some cities and states have also enacted new leave laws to address COVID-19 concerns.

To create a balance between protecting an employee’s rights, and potential business disruption, employers should remain flexible when possible and notify employees that dialogue will be ongoing. When practical, a voluntary or gradual return to work process could also help curtail issues and concerns.

Conclusions
Many initial workplace legal assessments and recommendations that preceded or were provided during the stay at home orders will apply to the reopening stage of the pandemic.  However, as we begin a new normal, employers should be aware there is no “one size fits all” approach to safely and effectively bring employees back to the workplace. Companies navigating the complexities of state and federal employment laws related to COVID-19 should consult with counsel to ensure legal compliance and minimize exposure.