The impact of COVID-19 has been devastating for employers, employees, independent contractors, and the self-employed. Yet, as cases begin to plateau and the curve appears to be flattening in places like New York, the pandemic’s epicenter here in the U.S., the conversation has begun to shift from how to survive the crisis to how best to manage our way back to work—when the time comes—in an effective and safe manner. The answer to the latter question will fall not only on policy makers governing the parameters of the public aspects of our daily lives, but also squarely on employers—like you—as they are given, in whole or in part, the all-clear to resume operations.
It is logical to assume that commerce will resume slowly by location and industry. While the timeline remains uncertain, you should start planning for the resumption of operations now, so that when stay-at-home and similar orders are relaxed, you and your managers will have considered how to handle the many variables involved in reintegrating your workforce.
No doubt, there will be several challenges ahead, beginning with making your workplace safe for employees to return to their posts once you have been given the green light to bring them back. That will be job number one. Next on the to-do list: determining the composition of your post-quarantine workforce. This is because the nature and size of your business may have changed since the beginning of the pandemic, and simply restarting operations all at once—with the same pre-crisis cohort of employees, in the same jobs, and at the same rates of pay—may simply not be possible or practical.
Consider this: in the weeks and/or months to come, there may be good reason to assign qualified individuals who have COVID-19 antibodies to customer-facing roles, while removing more at-risk employees from the front lines. In fact, many workplaces—yours included—might require reorganization, retraining, reassignments, identification of redundancies, and downsizing. As such, you should act strategically; employers that fail to plan and justify their workforce reintegration decisions could face legal challenges down the road, as the host of employment laws and regulations that existed pre-coronavirus continue in full effect.
As indicated, workplace safety is everyone’s priority, and your employees will want to know and feel that returning to the office, store, hotel, restaurant, factory, warehouse, or whatever your place of business may be is completely safe. Toward that end, transparent communication about how you plan to guarantee employee safety is essential. Not only that, the task is morally and legally mandated.
The general duty clause of the Occupational Safety and Health Act (OSHA) mandates that employers provide their employees with a “workplace free from recognized hazards likely to cause death or serious physical harm.” Prior to the onset of the coronavirus, this obligation was rather straightforward, but how the requirement will be interpreted as a legal standard when our government desires—and perhaps is even pushing for—the widespread resumption of the economy in the face of a highly contagious virus remains unclear.
What we know is that OSHA, unions, and employees will see the general duty clause as just that, a duty, as well as an aspirational standard requiring employers to use their best efforts to comply. Therefore, clear consideration and a balancing of interests will have to be given to the mitigation efforts undertaken by all employers, yet the standard of what is appropriate to maintain a safe environment for employees will differ by industry and workplace. As it is today, the size of the employer, its relative wealth, and the nature of the work performed will be key factors. Whatever the case may be, every employer, including you, should engage in a top-down review to determine how, and if, it can make its workplace safer for the inevitable return of employees.
The Workplace in the New Normal
Social distancing may be here to stay (at least temporarily)
As the COVID-19 crisis begins to fade, the initial safety challenge will be enormous. Among other things, you will need to consider whether greater social distancing is possible given the design and operations of your existing office or facility. If not, you might think about redesigning your space to reduce density. Otherwise, perhaps it would make sense to encourage continued telecommuting for some. And should that not be practical, maybe moving, for a period of time, to staggered work hours, or having different teams reporting to work on different days in order to facilitate social distancing, could be a good solution.
A new look for hospitality
If you operate in the hospitality space, be ready for restrictions to be placed upon your business—for the time being—that will require a measure of flexibility. For instance, it is foreseeable that local governments will allow restaurants to reopen in the not too distant future, but also require significant spacing between tables. Similar rules could impact other places of public accommodations (e.g., bars, hotels, airport lounges, and the like).
Personal protective equipment and health of the workplace
Another issue to keep top of mind when approaching a coronavirus-colored version of “business as usual” is what PPE, if any, employees should wear, and whether you must wait to reopen if you cannot obtain the PPE that is needed. To the extent PPP is necessary, employees will have to be trained in its use and proper disposal.
An additional challenge will be ensuring that your workforce is healthy and not likely to infect others. That means that as we ease back into the world as we knew it, your human resources staff or security personnel may need to take the temperature of employees as they arrive for work or cull out others who are coughing or showing other observable symptoms of COVID-19 so as to prevent them from entering the workplace. Thought will also have to be given to the most routine events, like managing the egress to your place of business or, for example, its elevators to prevent crowding. There is more. To mitigate the chance of another outbreak, it may be essential for you to limit undue density in your company’s cafeteria or breakrooms, and reconfigure—or temporarily eliminate—the common lounge-type work areas that have grown in popularity over the last decade.
Steps You Can Take Going Forward
In light of all of the foregoing, here are some concrete actions you can take to promote workplace health and safety in the wake of the coronavirus and during the new normal:
1. Appoint a manager or a team (HR, operations or facilities personnel) to coordinate workplace safety audits and efforts and to monitor Center for Disease Control and Prevention (CDC) and local health department advisories.
2. Identify where and how employees may be exposed to the coronavirus while at work, whether it be from co-workers, the public, and/or customers. At the same time, determine who on staff is at high, low, and medium risk. Of note, most non-healthcare office workers would be classified by OSHA as low risk, but those with exposure to the general public such as retail workers, teachers, and so forth are likely to be considered medium risk requiring additional precautions and PPE, at least for a while.
3. Consider employee risk factors (read: age, chronic illness, and pregnancy). While a host of laws prevent workplace decisions from being made on account of these classifications, the new normal may mean that you ask, but not require, employees falling into higher-risk categories to contemplate options regarding things such as job assignments, telecommuting, and hours. Guidance provided by OSHA states that employers should implement “controls necessary to address employee ‘individual risk factors,’” which creates an obvious conflict between OSHA and the Equal Employment Opportunity Commission (EEOC). Consequently, in the new normal an employer may be forced to choose between safeguarding the safety of older employees and the prohibition against age-related employment decisions. Hopefully the Department of Labor will provide further direction on these issues.
4. General rules to follow:
- Monitor your workforce before they enter the workplace. The EEOC issued Americans with Disabilities Act (ADA) guidance on March 21, 2020 specifically stating that during a pandemic, employers may measure employee body temperature and may inquire whether employees have influenza like symptoms. Indeed, you can bar from the workplace employees who have COVID-19 or related symptoms. As new antibody testing is rolled out, this task may prove less complicated
- Mandate handwashing and use of Purell or similar products (toward that end, make handwashing stations and hand sanitizer available to employees)
- Provide appropriate PPE; train employees on how to properly put it on, use, and dispose of it; and develop rules on where and when PPE should be worn. OSHA has made it clear that “employers are obligated to provide their workers with PPE needed to keep them safe while performing their jobs. The types of PPE required during a COVID-19 outbreak will be based on the risk of being infected with SARS-CoV-2 while working and job tasks that may lead to exposure”
- Provide adequate no-touch trash receptacles
- Preclude sharing of office equipment, desks, chairs, phones, pens, and the like unless they can be fully sanitized between users
- Implement a workplace cleaning and disinfection routine using products approved by the Environmental Protection Agency (this is particularly important for lavatories, common spaces, and door handles)
- Determine whether workplace/employee tasks can be redesigned/reallocated to promote social distancing
- Explore staggered shifts or alternate workdays
- Limit in-person meetings
- Curtail use of common work areas and lounges
- Install sneeze guards where needed (e.g., reception areas, cafeteria cashiers, etc.)
- Limit visitors and screen those that are admitted to the workplace or provide them PPE
- Consider upgrading HVAC and ventilation and installing high efficiency air filters
- Follow CDC and OSHA recommendations regarding travel. More specifically, travel should be undertaken only when necessary and you should ensure that employees are provided adequate PPE for their trips
Clear communications, polices, and training regarding all of the items above is essential for you and your employees. As you transition back to business on-site, they will certainly appreciate that you are doing everything possible to keep them employed, safe, and healthy in a climate shaded by COVID-19—otherwise known as the new normal.
This blog post is not offered, and should not be relied on, as legal advice. You should consult an attorney for advice in specific situations.