On April 16, 2020, the White House issued “Opening Up America Again,” a three phase state-by-state approach for reopening the U.S. economy. Some state governors, including Governor Herbert in Utah, are beginning to relax stay-at-home orders. This memo discusses the top compliance and workplace concerns your business may face as you stage your comeback.
Many employers are creating task forces or individuals that are assigned to assess and mitigate risk. The Occupational Safety and Health Administration (“OSHA”) issued advisory guidelines that can assist employers that are re-opening their workplace. See generally U.S. DEPARTMENT OF LABOR, Guidance on Preparing Workplaces for COVID-19, March 2020, https://www.osha.gov/Publications/OSHA3990.pdf
Employers should conduct a site-specific risk assessment of their business as outlined in the OSHA Publication. This risk assessment should include an assessment of COVID-19 exposure with respect to the various job roles employees are engaged in, and should take appropriate steps to protect the employees in those roles from increased exposure. The OSHA Publication or guidance outlines minimum standards for the various exposure risk levels.
MITIGATING EMPLOYEE COVID-19 EXPOSURE
The U.S. Centers for Disease Control and Prevention’s (“CDC”) recommendations for maintaining a healthy work environment also provides specific measures and safeguards for employers that are re-opening the workplace. See generally U.S. CENTERS FOR DISEASE CONTROL AND PREVENTION, Coronavirus Disease 2019 (COVID-19) Interim Guidance for Businesses and Employers, March 21, 2020, https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html.
The state of Utah has also issued general guidelines for employers that are permitted to re-open for business. Employers should take the steps required in the Utah Leads document, beginning with identifying which category of employer they are, and then implementing the strategies outlined in the document to ensure they are maintaining compliance with State recommendations. Employer types, and recommended precautions by risk level are discussed on page 10 of the document, which is available here: https://coronavirus-download.utah.gov/Governor/UtahLeads%20April2020%20v20%20(2).pdf.
Strategies outlined by the State and the CDC include:
- Worker Hygiene. Employers should consider ways to support respiratory etiquette and hand hygiene for employees, including, posting signs encouraging frequent hand washing, providing hand sanitizer throughout the workplace, and prohibiting handshaking and other contact greetings.
- PPE/Personal Protective Equipment. Face coverings should be worn by employees and customers in accordance with CDC recommendations, especially where it is difficult to maintain 6 feet of distance.
- Equipment Sharing. Discourage workers from sharing resources or other work tools and equipment.
- Environmental cleaning – Make a list of high-touch surfaces requiring routine disinfecting and perform routine environmental cleaning (e.g., workstations, countertops, handrails, doorknobs, break rooms, bathrooms, other common areas), either twice a day or after each use. Keep a logbook of the cleaning regimen.
- Disposable wipes – Provide disposable wipes so that commonly used surfaces (e.g., doorknobs, keyboards, remote controls, phones, desks, keypads) can be wiped down by employees before each use; provide no-touch trash bins.
- Disinfectant – Make hand sanitizer, soap and water, or effective disinfectant readily available at or near the entrance, at checkout counters, or anywhere else people have direct interactions. Provide additional pop-up hand-washing stations or facilities if possible (e.g. showing houses, construction sites).
- Shared Workspace. Discourage employees from sharing workstations, phones, desks, offices, etc. Employers may also want to consider temporarily closing or restricting use of communal spaces such as pantries, conference rooms and discussion areas.
- Social Distancing Measures in the Workplace. Employers may want to limit the number of employees per floor or work station providing more space between employees. Some employers are adopting one-way hallways or paths through the workplace to avoid walking past each other. Reducing the number of individuals in the elevators or bathrooms should also be considered. Employers may also wish to consider staggered shifts to reduce the critical mass of employees are in the workplace at the same time. Depending upon the style of employer you are, reconfiguration of production lines, installation of physical barriers, and re-purposing of space may be proper.
The EEOC has provided guidance regarding certain types of workplace screenings currently considered lawful as a result of the COVID-19 crisis, as described below. Our article found here https://www.clydesnow.com/firm-news/covid-19/labor-and-employment-covid-19-resources/eeoc-issues-updated-guidance-for-employers-balancing-covid-19-the-ada-and-other-eeo-laws/ provides details on the EEOC’s guidance.
The EEOC’s guidelines suggest that employers may administer COVID-19 testing to employees before they are allowed to enter the workplace. Employers should maintain the confidentiality of any test results and ensure that any records of the testing conducted is stored separately from employee files. .
Employers May Implement Medical Screenings for COVID-19 Symptoms
Employee body temperature testing is permitted for employees returning to the workplace, and employees who refuse testing may be barred from the workplace. Employers may also lawfully exclude individuals with COVID-19, or those manifesting symptoms, from the workplace. In addition to temperature screenings, employers may ask employees questions to determine if they have or have had COVID-19, including whether they have symptoms, and whether they have been tested for COVID-19. The EEOC has issued guidance that employers may not ask employees if their family members have COVID-19 or have exhibited symptoms of COVID-19. It is appropriate, however, to inquire whether employees have had contact with anyone diagnosed with COVID-19. All medical information collected during this process must be kept confidential.
Employers should also develop an action plan to implement if an employee tests positive for COVID-19, which may include notice requirements, required disclosures, sanitization of the employee’s workspace, reallocation of work (if necessary), and other employer sensitive issues.
Returning to work brings many questions and a range of emotions for many employees. Employers may mitigate some of these concerns by updating sick / paid and unpaid leave policies, travel policies, distancing protocols and safety procedures; training employees on return to work procedures; communicating with employees regarding their accrued leave, vacation and PTO, quickly address requests for accommodations, and putting protocols in place regarding individuals visiting the office. Employers may wish to evaluate employee wellbeing processes and consider changes to their policies. A free resource, provided by Degreed which helps employers assess their ability to provide wellness policies that work and last is available here: https://degreed.com/pathway/492n1q63p2?path=employee-wellness-for-hr-and-l-d#/pathway