Returning to work: An employer’s safety checklist

With more states lifting shelter-in-place orders, a growing number of CEOs are considering how to reopen their businesses while protecting the health and safety of their employees.

According to early analysis of the latest Vistage CEO Confidence Index survey conducted May 4-11, CEOs from small and midsize businesses plan to implement a wide range of safety measures as part of their return-to-work strategy, as shown in the chart below.

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To better understand these options and other emerging strategies, we consulted with Vistage speaker Joel J. Greenwald, Esq., an employment attorney and managing partner of Greenwald Doherty LLP. Below, Greenwald provides a checklist of safety protocols, policies and practices to consider when planning a return to the office.

Reengineer the office

• • Reconfigure desks. Create physical barriers to enforce social distancing. Place desks at least six feet apart.
  • Upgrade doors and ducts. Install electronic door openers, or prop doors open slightly, so people don’t need to manually open doors. Consider installing UV light technology to kill airborne viruses.

• Post signage that outlines new protocols. Use these to clarify new policies for handwashing and personal hygiene; explain processes for accepting deliveries or avoiding groups; outline rules for hosting visitors and working with outside vendors; requesting for ill individuals to not enter; and so on.
• Limit the number of people present. Stagger people’s shifts. Make teleworking available to more people for longer periods of time. Prohibit meetings, parties and any other gatherings with large groups of people (e.g., more than four people); may choose to modify as state orders permit larger gatherings.
• Upgrade cleaning and sanitization. Enlist an expert to clean and disinfect workspaces, especially if an employee takes ill. Frequently wipe down often-touched surfaces.

Put new policies into practice

• Conduct health checks. Take employees’ temperature each morning and consider requesting antibody tests. Monitor employees’ symptoms and self-reporting of symptoms. As the CDC notes, “as of March 2020, employers may measure employees’ body temperature. As with all medical information, the fact that an employee had a fever or other symptoms would be subject to ADA confidentiality requirements. Employers should be aware that some people with influenza, including the 2009 H1N1 virus or COVID-19, do not have a fever, nor will everyone with a fever test positive for COVID-19. Review the U.S. Equal Employment Opportunity Commission’s Pandemic Preparedness in the Workplace page for legal guidance and to determine the best approach for your business.”
• Set safety standards — not guidelines. Make these standards strong, clear and non-negotiable. Provide training so employees learn, understand and abide by them.
• Provide and require the use of PPE. Issue personal protective equipment (PPE), such as masks, to all employees and require them to be used, while keeping in mind employer obligations to reasonably accommodate those with health conditions who may be able to be at work with modifications to these requirements.
• Allow for remote work. This is the time to be flexible on where your people work. “Two months ago, if someone asked to work remotely, we might have said, ‘No, that doesn’t work,’” says Greenwald. “Now, it’s hard to make that argument, especially for employees who are older or have underlying health conditions.” According to the Centers for Disease Control and Prevention, telework is an effective infection-control strategy that is also familiar to ADA-covered employers as a reasonable accommodation.
• Act swiftly when employees get sick. Ask employees showing symptoms of COVID-19 to self-isolate for 14 days, or as otherwise required by their health care professional. Establish a process for notifying authorities and employees about new incidences of COVID-19.
• Provide special accommodations for at-risk workers who request them. This includes older workers, those with underlying health conditions (e.g., heart disease or diabetes) and potentially those with mental health conditions. Also, offer accommodations to working parents whose children are still at home, and consider whether federal leave obligations apply. Be mindful not to treat these employees differently unless they request assistance, but be sure communication channels are open for such requests.

Appoint and empower leaders

• Appoint a Chief Safety Officer. Have them monitor changing federal, state and local regulations and make executive decisions about safety protocols. “You’ve got to be thinking about what government agencies like the CDC, OSHA and EEOC are recommending,” says Greenwald. Safety compliance should be a top concern, as Greenwald notes that “Companies have already had lawsuits filed against them for failing to take appropriate safety measures.”
• Create a safety committee. The committee should weigh in on questions such as: Who is coming back to work and why? Who determines how people will return to work? Should we ask employees to volunteer to come to work? Should we offer “hazard pay” to reward employees for coming in? Be mindful to avoid the appearance of, or actual, discrimination in making selections of who to return to work.
• Monitor changing laws. It’s not yet clear whether businesses will get a liability shield that protects them from Covid-19-related lawsuits (e.g., if an employee gets sick and sues their employer). It’s also not yet clear whether workers who get Covid-19 may be entitled to workers’ compensation. Companies also need to be mindful about privacy laws, as they’re likely to have more access to employees’ health information than ever before.
• Ensure open and clear communication. Leaders across the executive, director and managerial levels need to communicate openly and regularly with their employees to keep everyone informed of and on board with new and changing procedures.
• Plan for coverage due to FFCRA. Under the Families First Coronavirus Response Act (FFCRA), employees are entitled to a leave of absence and paid time off for reasons related to COVID-19. This remains in effect until at least Dec. 31, 2020. “Businesses need to be aware of these laws and plan for coverage, considering there still may be large numbers of employees out sick or showing symptoms who need to remain out of the workplace,” says Greenwald.

Overall, Greenwald encourages CEOs to stay flexible as conditions continue to evolve and the future remains uncertain. “We’re like weather forecasters right now,” he says. “I think it’s going to rain this weekend — but I don’t know for sure.”

Disclaimer

The foregoing is a summary of the laws discussed above for the purpose of providing a general overview of these laws. These materials are not meant, nor should they be construed, to provide information that is specific to any law(s). You should be aware that these laws are changing rapidly. The above is not legal advice and you should consult with counsel concerning the applicability of any law to your particular situation.
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