High Level Overview of Best Practices for Returning Employees to Work During the Midst of the COVID-19 Pandemic

May 12, 2020Article

Over the last few weeks, many states have allowed certain businesses to reopen and have lifted restrictions on the ability of employees to return to the workplace. For employers, this requires an analysis and a plan for the safe return of employees and modifications to their prior practices and workplace layout. The following are certain of the key practices for a safe return to the workplace that follow the recommendations of the Centers for Disease Control (“CDC”) and the realities of the new workplace while under the COVID-19 pandemic.

Attempt to Determine the Health of Any Potential Returning Employee

Although the Health Insurance Portability and Accountability Act generally prohibits asking employee about their health, the Equal Employment Opportunity Commission has confirmed employers have the right to request health information from workers during the COVID-19 outbreak. Employers can inquire if their employees are suffering from signs of illness including cough, chills, and/or fever which are associated with COVID-19. The employer should also ask if the employee is in contact with a family member who is ill. Any responses received must be maintained by the employer as a medical record to comply with the Americans with Disabilities Act.

Make Sure Employees Understand What is Expected of Them Upon Their Return to the Workplace

Prior to their return to the workplace, employees should be made aware of the changes in expectations and new safety requirements. Things to discuss include the following: will workplace hours be different, will masks be required, will protective equipment be required and provided, and will employee temperatures be taken? Responses to these issues may cause an employee to decline to return to the workplace which is key information where the employer is determining on a case-by-case basis which employee should return to work. The employer may also consider providing the returning worker with a recall letter that outlines employer expectations.

Check for any Government or Public Health Orders That May Affect Businesses

Many State and local governments have issued regulations that mandate how workplaces should operate after an employee returns to work. Employers should check with the local governments for guidance on how to comply with these regulations. These orders may also include requirements for daily cleaning of the workspace and providing protective equipment. Employers should also go to the CDC Website (www.cdc.gov) for further guidance on the spacing of employees while working, including how far apart employee desks/workstations should be placed, i.e., workplace “social distancing”.

Assess the Workplace in Advance of the Return to Work

Prior to employees returning to the workplace, the employer should assess the logistics of the workplace in light of the need for social distancing, worker breaks, workers chatting, and meetings. A review of the workplace will allow the employer to determine how to maintain at least six feet of employee spacing, where to conduct meetings, and how to control access to common areas like kitchens and near coffee machines. That may also determine where distance markers should be applied to the floors where standing workers are operating.

For those workplaces that have been closed, the employer should have a “deep clean” prior to reopening. That cleaning should include all common areas, particularly kitchens. Returning employees should be counseled to wipe their workspaces, phones, and keyboards with anti-viral cleaner and reminded to wipe these spaces on a daily basis.

Consider a Health and Safety Officer

The designation of a health and safety officer can provide returning employees with a person to which they can ask questions about COVID-19 policies, discuss areas of safety improvement, report other employees failing to follow the employer’s safety guidelines, and speak to should they begin to feel unwell.

Employers are reminded that returning workers may also have psychological issues from isolation and this crisis. Issues involving childcare, public transportation, caring for ill family members, and bereavement may be present. Having a safety coordinator to speak to about these issues can humanize the employer and more quickly resolve issues. Returning employees may also discuss the need for flexibility in working hours and workload if they have issues.

A safety officer can also conduct re-orientation meetings with returning employees. These meetings should include workplace safety issues and requirements, changes in company procedures or services, and any changes in employee reporting should not all employees return to work at the same time.

Continue to Check CDC Guidelines

The COVID-19 virus has proven to be a fluid, adaptable, and changing virus over the past months. That has required the CDC to continue to update and change its recommendations for safe human interactions. The following section of the CDC Website is geared toward employers and has access to specific types of employers. Employers are encouraged to check and monitor the CDC recommendations on a regular basis.

Keep in mind that this does not cover all issues for employers who have employees returning to the workplace. For example, other considerations include discriminatory practices in employees chosen to return to work, exempt employees losing that status by covering for non-exempt workers, and developing a plan if absenteeism spikes. While there are other employee and safety issues facing employers, the issues addressed herein should inform employers of those issues virtually every employer will face once it decides to reopen the workplace.

Author: Phil J. Montoya, Jr. (Partner, Los Angeles) Editor: S. Christopher Collier (Senior Partner, Atlanta)

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