Guidance for Reopening Your Business

As businesses look toward reopening their doors to staff and customers in the wake of COVID-19, we thought it would be helpful to provide an overview of considerations you should take into account moving forward.
Best Practices
* Review government guidance published by the Centers for Disease Control and Prevention (CDC), Occupational Safety and Health Administration (OSHA), the Equal Employment Opportunities Commission (EEOC), and the Food and Drug Administration (FDA).

* Establish a working group of key individuals representing the executive, human relations and legal functions of your company to monitor updates and changes in guidance to ensure consistency across operations. This group should establish a protocol for how you will communicate changes in this guidance or your operations to management and employees.

Safety Concerns
* Review OSHA’s Safety and Health Standards, Guidance on Preparing Workplaces for COVID-19, Ten Steps All Workplaces Can Take to Reduce Risk of Exposure to Coronavirus, and Prevent Worker Exposure to Coronavirus.

* Review the CDC’s Guidance for Businesses & Employers to Plan, Prepare and Respond to Coronavirus Disease 2019, and Disinfecting Your Facility: Everyday Steps, Steps When Someone Is Sick, and Considerations for Employers. Review the FDA’s Guidance Regarding the Enforcement Policy for Face Masks and Respirators.

* While this information is mere guidance and not mandatory, the ability to demonstrate compliance with existing guidelines could help avoid future liability.

Permissible Employer Actions
The Americans with Disabilities Act (ADA) generally forbids you from discriminating against job applicants or employees on the basis of a disability, but there is an exception when the individual poses a “direct threat” to the health/safety of the workplace. The EEOC has affirmed that COVID-19 satisfies the definition of a “direct threat.” As a result you are permitted to do things like:

* Ask employees about virus-related symptoms;
* Require employees to submit to temperature testing;
* Require employees to report COVID-19 diagnoses;
* Administer COVID-19 testing prior to employee entering the workplace;
* Require employees with COVID-19 to leave the workplace and present medical certification proving fitness for duty before returning to work; or
* Delay start date and/or withdraw job offer if an applicant tests positive for COVID-19 or has COVID-19 symptoms.

Employee Health Measures
* If an employee is diagnosed with COVID-19, or suspects s/he is sick with COVID-19, the employee should be sent home to self-quarantine until a doctor releases him/her back to work.

* If the employee cannot get a doctor’s certification, you should follow the CDC’s guidance for Ending Home Isolation. This typically means asking the employee to identify all coworkers with whom they worked in close proximity for a prolonged period in the 48 hour period preceding the onset of symptoms. Those coworkers should be sent home for 14 days in an effort to contain the spread of the infection, but you should take care not to identify the confirmed-diagnosed employee when discussing the issue with other employees.

* The CDC has issued distinct Interim Guidance for Critical Workers who may have been exposed.

* The workplace should be cleaned and disinfected, and employees who work in the same location or area as the infected employee should be notified without revealing that employee’s name. Employees should be informed of all actions taken by the company upon notification of the diagnosis. The failure to notify employees of a confirmed case may violate OSHA’s general duty clause, which requires you to provide employees with a safe work environment. When asking about symptoms, you should take care to only ask about symptoms characteristic of COVID-19.

* If you decide to do temperature screenings, please keep in mind that not all carriers have a fever. Also note that the temperature screens are only permitted during the pandemic.

Worker’s Compensation Claims
In most circumstances, it is hard to determine whether a COVID-19 diagnosis will result in a workers compensation claim. Typically, an employee has to establish that s/he contracted the disease in the workplace, which may be difficult in light of the community spread and asymptomatic presence of COVID-19.

Anti-Discrimination Laws Still Apply
* You should clearly communicate to employees that their fears about COVID-19 should not be misdirected towards individuals because of their national origin, race or membership in another protected class. Discrimination and harassment of employees returning to work following a COVID-19-related absence may also constitute unlawful discrimination based on the employee’s actual or perceived disability.

* You may also see an increase in requests for accommodations from employees with underlying physical or mental health conditions covered by the ADA that may be worsened or complicated by COVID-19. While the EEOC requires flexibility and granting reasonable accommodation, you are not required to accommodate requests that would constitute an undue hardship.

* In the current environment, economic considerations have been deemed more relevant than before in assessing undue hardship. You should also be careful about compliance with discrimination laws when deciding who to lay off or fire, as well as who to recall to work.

Available Leave
Employees remain entitled to leave under the Families First Coronavirus Response Act (FFCRA). Some states are also passing emergency leave laws during the pandemic.

Unemployment Insurance
* A request that a furloughed employee return to work is typically considered an offer of suitable employment that the employee must accept, terminating any prior entitlement to collect unemployment insurance.
* Employees generally cannot choose to resign in an effort to continue to receive unemployment insurance. This voluntary resignation will likely terminate eligibility for unemployment compensation.

Reopening for business in this changing and uncertain landscape is challenging. Shulman Rogers attorneys are available to answer questions and help you to design and implement a plan of action tailored to the specific needs of your workplace.
Contact info: Meredith S. Campbell Chair, Employment and Labor Group, Shulman Rogers [email protected] |T 301.255.0550 | F 301.230.2891