Ten Things to Consider In Getting Back to Work

As restrictions are easing, employers are planning for and starting to bring people back to work.  In these extraordinary times, everyone recognizes that things will not be business as usual.  Here is our “Top 10” checklist of things to consider as we move toward the “new normal.”

1. Reluctant Returners. Many employees are eager to return to work.  Others (who are earning more on unemployment benefits or are fearful) may refuse your invitation to return.  Carefully evaluate employees’ proffered reasons for not returning and your next steps, which may vary depending on their status (including whether they were previously terminated, furloughed, or on protected leave) and may include termination or protected leave upon reinstatement.  If your business received a loan through the Paycheck Protection Program, your eligibility for loan forgiveness may not be impacted by employees who refuse to return if you take certain steps, as we discussed here.
2. State-Specific Mandates. Some states (including Oregon) now require employers to develop policies regarding social distancing, personal protective equipment (PPE), temperature checks, and more.  Some states also limit workplace occupancy for employees as well as customers/visitors.  Make sure you are up to date with any applicable state and local requirements.
3. Social Distancing. Implement (and assign someone to enforce) social distancing policies (which should be in writing and clearly communicated to your workforce) to maintain at least six feet of distance between employees.  Ideas include restricting hallways to one-way use, moving workstations, erecting temporary barriers between workstations, and temporarily closing communal spaces (conference rooms, break rooms, etc.) or limiting them to the number of people who can maintain social distancing requirements, depending on the size and layout of the room.  If you have an area where employees congregate, consider markers on a wall or the floor to indicate the appropriate distance between people.

   Your supervisors should be prepared to enforce these new policies, and your employees may have good ideas – ask them for input!  Your human resources (HR) department should be prepared to respond to employee concerns or complaints about their co-workers stepping over the proverbial (or literal) line (remember, no retaliation!).

4. Staggered Return and Modified Schedules. Encourage or require telework when feasible, but for those employees returning to the workplace, consider bringing them back in phases.  Also consider split or staggered shifts (or staggered arrival/departure times), and staggered meal periods and rest breaks.  If you can offer flexible scheduling, talk to your employees and incorporate their preferences if you can reasonably do so.  Be clear that any modifications are temporary and subject to change.

   If you are thinking about reducing work hours, evaluate whether participating in your state’s work share program (where available) makes sense for your business and your employees, and, for businesses that received a Paycheck Protection Program loan, what impact that may have on forgiving your loan.

5. Hygiene and Sanitation. Provide hand washing stations and hand sanitizer and encourage frequent hand washing and good hygiene practices.  Ensure frequent disinfection through regular cleaning, especially of high-touch surfaces, and provide employees with sanitation wipes.  (Be prepared to police employees from absconding with highly coveted sanitation wipes and sanitizer for personal use at home.)
6. PPE for Employees and Customers. Consider whether to require employees – and customers – to wear face coverings or masks or other PPE on your premises.  If the nature of your operations does not always permit appropriate distancing between employees or customers, this may be a reasonable requirement, and may be mandated by the Occupational Safety and Health Administration or state law.  Be prepared to send employees home if they refuse to use PPE, and to consider reasonable accommodations for employees as required by the Americans with Disability Act (ADA) or Title VII.  (Also make sure you are properly paying employees for time spent donning PPE.)
7. Medical Screening. Consider whether to require employees to submit to medical screenings such as temperature checks, or to encourage employees to do a self-screen or temperature check before they report to work.  Though such procedures may ordinarily be considered “medical exams” that are regulated by the ADA, the Equal Employment Opportunity Commission recently released guidance that allows them.  Keep the screening results confidential and separate from personnel files and be cautious about who has access to this data.  HR personnel, who are familiar with handling sensitive matters, are good candidates to manage the screening process.
8. Sick Employees. Have a detailed plan of action for sick employees, including prohibiting employees from entering the workplace until they have been symptom-free (unmedicated) for at least 72 hours.  Do not share the identity of any employee who shows symptoms of or is diagnosed with COVID-19, even if the employee gives you permission to do so.  Ask the employee to identify individuals with whom they have worked closely over the prior 14 days.  (Because it can be difficult to recall everyone you’ve been near over a two-week period, some employers are developing visitor logs and asking employees to meticulously track their personal contacts daily on their calendars.)  Inform potentially exposed individuals confidentially, and consider whether to permit them to take leave.
9. Protected Leave and Updated Policies. Are you subject to the Families First Coronavirus Response Act (FFCRA)?  Know whether and when you may need to provide leave for COVID-19 related reasons, including school or daycare closures.  (See FFCRA Eligibility and Employee Leave Requests or FFCRA Leave for Childcare Closures May Extend Beyond the End of the School Year for more information on FFCRA leave.)  Update your policies accordingly and pursuant to changes in state and local laws (such as sick child leave in Oregon and paid sick time in Seattle).  Develop any new policies required by your state or local officials (such as those required in Oregon).
10. ADA Issues. Be prepared to navigate ADA issues and provide accommodations to “high-risk” employees – see our discussions of common ADA issues and Washington’s new mandate regarding “high-risk” employees.

Suffice it to say that getting employees back to work requires as much or even more planning and thought than employers undertook in implementing furloughs and layoffs when many businesses shuttered or slowed many weeks ago.  For additional guidance about bringing your employees back to work, contact your Stoel Rives attorney.