Reopening for Business: Preliminary Considerations for Employers

As businesses reopen, employers must comply with the ever-changing guidance and restrictions related to COVID-19. A reopening plan should contain, at a minimum, a communication strategy, safety and prevention strategies, testing and screening plans and a litigation prevention strategy. The following provides a brief overview of the points to consider:

Communication. Many employees are anxious about returning to work, so informing them about what to expect upon their return may help alleviate concerns. Include information regarding the process of returning to work (alternate schedules, teleworking, etc.), information regarding health and safety precautions, and information regarding available leave whether paid or unpaid.

Safety and Prevention. It is important to review guidance from the CDC, OSHA, and state and local health authorities.  In particular, employers should consider the precautions such as proper cleaning and disinfecting protocols, social distancing (which may include modifications to schedules, physical workspaces, or continued telecommuting), and frequent hand washing.

Testing and Screening. The EEOC has stated that employers may test for the virus and take employees’ temperatures prior to allowing them in the workplace. The individual administering the exams must be properly trained. All medical information should be kept confidential. Employers may also question employees to confirm that they have not experienced symptoms of the virus. Employees who have been within six feet of a positive employee for a prolonged period of time (CDC currently states 15 minutes) should be informed about possible exposure. However, the source of potential exposure should not be identified, if at all possible. Potentially exposed employees should follow the current CDC guidelines for individuals who have been in close contact with infected individuals.

Legal Risk Prevention. OSHA’s General Duty Clause requires employers to “provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm.” This could include providing personal protective equipment, installing physical barriers, or implementing administrative controls, for example. An employee who speaks out about safety concerns may be protected by OSHA and the NLRA.

Typically, workers’ compensation laws differ from state to state. Some states have passed legislation ensuring certain workers are eligible for benefits who are quarantined due to COVID-19 exposure or illness. Other states have passed laws that establish a presumption that workers in certain industries who contract COVID-19 did so as a result of their employment. Lobbying and legislative efforts have occurred or are underway to establish a safe harbor for companies so long as the company’s actions do not amount to gross negligence, recklessness, or willful misconduct.

Learn more about recommended workplace reopening guidelines from the CDC website here.

Doug Kauffman, Partner, Balch & Bingham