COVID-19: Reopening Guidance for Employers

Social distancing. Testing employees as they enter the workplace. Encouraging telecommuting.

As states across the U.S. begin allowing employers to reopen their businesses, federal and local officials have provided guidance to help companies remain safe in the face of the coronavirus. Here, we have compiled tips from several government agencies as employers prepare to open their doors, offices and facilities.

Though many states have reopened at least some parts of their economies (and many more are on the horizon in the coming weeks), some businesses in those states have opted to remain closed. That sentiment is reflected in guidance from the Centers from Disease Control and Prevention (CDC), which asks employers to meet safeguards before deciding to reopen, even when legally allowed.

Because the pandemic has impacted some parts of the country differently from others, it’s vital to review local benchmarks when creating a plan to reopen locations.

“It is important to check with state and local health officials and other partners to determine the most appropriate actions while adjusting to meet the unique needs and circumstances of the local community,” according to the CDC.

At a high level, the guidance compiled here applies to several aspects reopening, including:

• Maintaining safe working conditions
• Monitoring employee health
• Employee privacy
• Sanitizing efforts
• Promoting telework
• Personal protective equipment

Employers should also note that recommendations for safe practices from government agencies could be considered legally required. Failure to do so might open the door to civil and criminal liability. For example, personal protective equipment (PPE) could be legally required in certain instances, should an employee be at risk to contact the coronavirus via the nature of the job.

Are You Ready to Reopen?

The CDC’s so-called workplace decision tools to determine whether an employer should reopen offers some common-sense solutions to take before opening. Among the steps:

• Adhering to local orders on reopening
• Ability to protect high-risk employees from COVID-19
• Promoting healthy practices, i.e., handwashing, wearing masks
• Encouraging social distancing
• Safety training
• Procedures for ensuring employees are healthy enough to work
• Flexible scheduling, staggered shifts and plans for mass illnesses

Within each of these metrics are further steps employers can take to ensure a safe workplace. Not requiring a doctor’s note, for example, if an employee uses paid leave, or encouraging self-reporting of COVID-19 symptoms among employees. These are aimed at easing the burden on both employers and employees as the nation begins to reopen its businesses.

Still, regardless of whether an employer meets all the criteria to reopen, it the CDC encourages continuous monitoring of conditions related to the coronavirus.

Monitoring Employees – Testing Concerns

One step many employers may take is conducting daily “health checks” and/or testing of employees.

The Equal Employment Opportunity Commission (EEOC) has affirmed that companies may test workers, and the Americans with Disabilities Act (ADA) does not allow pre-existing conditions to be a reason to exclude an employee from the workplace.

Testing often includes taking workers’ temperatures to help prevent against the spread of the coronavirus among their workforce. But should an employer opt to do so, testing must still be aligned with ADA requirements (as well as accurate).

Also, if mandatory testing is in place, employers may consider getting written consent from employees. And any testing results are generally subject to ADA confidentiality requirements.

Employers, according to the EEOC, are also permitted to:

• Send home employees who exhibit COVID-19 symptoms
• Ask sick employees about the nature of their illnesses
• Ask an employee who traveled to stay home before showing COVID-19 symptoms
• Require workers to use PPE

However, many of the recommendations regarding testing are tied to how employees do their work within the setting of the business. Machinists who work in large facility may not need testing as much as a cashier at a retail shop, for example.

As always, it’s best to consult with legal counsel for specifics when it comes to reopening during the current pandemic.

Conclusion

The coronavirus pandemic has created many compliance hurdles for employers who want to begin doing business again.

While federal, state and local officials continue to allow businesses to reopen, there are many steps an employer should take to comply with local orders and ensure a safe and healthy workplace.

The summer months ahead will likely mean looser restrictions on employers. Keeping up with the latest CDC, OSHA, EEOC and U.S. Department of Labor guidelines will be part of the overall process for businesses across the country.

Other COVID-19 Employment Law News Blogs

• Coronavirus: What Employers Should Know

• Coronavirus: U.S. House Passes Bill for Emergency Paid Leave
• COVID-19: Colorado, New York Combat Coronavirus with Emergency Paid Sick Leave
• Coronavirus: DOL Issues Guidance on Emergency Paid Leave Act
• DOL Issues Additional Guidance on Families First Coronavirus Response Act
• What Does the Coronavirus Stimulus Package Mean for Employers?
• Companies Doing Good During the Coronavirus Pandemic
• DOL Issues Temporary Rule on Families First Coronavirus Response Act
• New Virginia Minimum Wage: Effective Date Could Change Due to Coronavirus
• Coronavirus Update: States Start Reopening Economies 

This Employment Law News blog is intended for market awareness only, it is not to be used for legal advice or counsel.