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Morris Manning & Martin, LLP

Checklist for Employers: COVID-19 Return to Work Considerations

04.24.2020

During the last several weeks, governors and public health officials across the country have issued stay-at-home and shelter-in-place orders to help contain the spread of COVID-19. As a result of these efforts, many employers have had to restructure their workforces and/or transition their employees to remote work. Now, as states take steps to reopen parts of their economies, employers should be proactive in planning next steps to minimize any additional disruptions to their businesses and avoid potential employment-related legal liabilities.

Below is a checklist of considerations for employers as they begin to transition their employees back to the workplace.

Review and adapt with applicable state and local stay-at-home/shelter-in-place order(s).

  • Determine if your business is permitted to resume normal operations and if there are any applicable restrictions.
  • Avoid implementing company-wide return to work policies if you have employees in different jurisdictions.
  • Continue to monitor state and local guidance for updates given that responses to the COVID-19 pandemic are rapidly evolving and require flexibility.

Develop a plan for transitioning employees back to work and communicate these plans with employees.

  • Communications with your workforce should be drafted carefully, keeping in mind both your company goals and legal obligations. Reference information regarding employees’ return to work from public health authorities, such as the Centers for Disease Control (CDC), from other federal authorities, such as the U.S. Department of Labor (DOL), the U.S. Equal Employment Opportunity Commission (EEOC), and the Occupational Safety and Health Administration (OSHA), and from any applicable state/local guidance.
  • Where possible, employers should transition senior-level officers and managers back to the office first and consult with them regarding on-going remote work capabilities and business needs, urgent or otherwise.
      • Employers may want to implement a voluntary callback program to address employee concerns about returning to work.
  • Consider all available options (i.e., staggered work shifts or transitioning certain departments back before others) to reduce the total number of employees in the workplace at any given time.

Request the appropriate health information to determine whether an employee has been exposed to COVID-19 prior to his or her return to the workplace.

  • Follow guidelines from the CDC and other authorities prior to permitting the employee to return to work.
  • In addition, employers should consider having each employee execute a self-certification form, attesting to his or her fitness to return to work, prior to entering the workplace.
  • Employers should maintain all employee health information as confidential in compliance with the Americans with Disabilities Act (ADA), state or local law, and/or applicable company policy.

Establish and implement appropriate screening procedures when employees return to work.

  • Employers should provide clear guidance to supervisors on what information they may request from employees and actions they may take in the workplace.
  • Employers may consider taking employee’s temperatures before they enter the building, but should remember that not all COVID-19 patients experience a fever.
      • Implement a COVID-19 Temperature Check Policy that complies with applicable federal, state, and local law.
  • Employers should instruct any employee who becomes ill during the workday to go home immediately.
  • Employers should make sure not to engage in unlawful disparate treatment based on protected characteristics (such as disability, age, sex) in decisions related to screening and exclusion.

Consider the circumstances relevant to an employee’s return to work.

  • Determine whether the company intends to keep any salary and/or hours reduction in place and clearly communicate this information to the employee prior to his or her return to work.
  • Consider whether there are relevant policies (i.e., Anti-Discrimination/Anti-Harassment Policies) that should be re-circulated or specific paperwork that needs to be completed upon re-hire and/or return to work.
      • This will vary depending on whether employees were furloughed or temporarily laid off.

Where possible, employers should provide employees with personal protective equipment (PPE) and engage in infection control practices.

  • Where an employee with a disability needs a related reasonable accommodation under the ADA or applicable state/local law, or a religious accommodation under Title VII of the Civil Rights Act (Title VII) or any similar state or local law, the employer should discuss the request and provide the modification or an alternative if feasible and if doing so would not present an undue hardship on the operation of the business.
  • Instruct employees to clean their hands often with an alcohol-based hand sanitizer that contains at least 60-95% alcohol or wash their hands with soap and water for at least 20 seconds.
  • Determine whether your work space is conducive to compliance with social distancing and infection prevention mandates and, if not, make the necessary adjustments.
  • Review guidelines from the CDC and the OSHA, and implement all necessary housekeeping practices, including routine cleaning and disinfecting of surfaces, equipment, and other elements of the work environment, to help prevent the transmission of COVID-19.

Take affirmative steps to ensure that employees do not suffer from (or engage in) any workplace discrimination or harassment and/or experience any adverse employment action for making a complaint about workplace safety.

  • Encourage employees to report any incidents of discrimination or harassment that they experience or observe in the workplace pursuant to company policy.
      • This also applies with respect to any harassment/discrimination from third parties, including vendors, customers, etc.
  • Employers should carefully handle any safety and health concerns raised by employees, given the Occupational Safety and Health Act’s anti-retaliation protections.

For assistance transitioning employees back to the workplace and drafting relevant policies, please reach out to the MMM Employment Team.