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Returning to the Workplace: What Employers Need to Know

May 21, 2020

As states begin to their introduce plans to reopen their economies, employers are understandably anxious about bringing employees back to the physical workplace. While returning to work will look different for each employer, there are several global considerations that all employers should keep in mind.

Understand your specific city/state phased opening plan.
Consider and incorporate guidance from the federal level.

State and local plans
Each state will face its own unique challenges in the return to work. In addition to the federal requirements discussed below, businesses need to understand state guidance when devising reopening plans for each state in which they operate. For example, Massachusetts, New York, New Hampshire, Vermont, and Rhode Island have all issued phased plans for reopening that should be consulted if a business employs individuals in these locations. Additionally, the City of Boston has different timelines for certain businesses, therefore employers should review city and town orders where applicable.

Massachusetts reopening plan
On May 18, Governor Baker outlined the plan for re-opening Massachusetts in a phased approach. Phase 1 permits for the limited reopening of certain businesses in the Commonwealth and will last for a minimum of three weeks. Detailed information concerning the phased reopening can be found at on the state website and in our prior coverage.

In additional to jurisdiction-specific guidance, businesses should also consider guidelines issued by the Centers for Disease Control (CDC), the Occupational Safety and Health Administration (OSHA) and the Equal Employment Opportunity Commission (EEOC) concerning their return to work plans.

CDC guidance for all workplaces
The CDC has advised employers to respond in a way that takes into account the level of disease transmission in their communities and revise their business response plans as needed. Additionally, the CDC has also emphasized that it is critically important that employers adhere to their state and local orders regarding reopening.

What does the CDC recommend?
The CDC has generally advised employers to:

Conduct daily health checks, including temperature checks;
Conduct a hazard assessment of the workplace;
Encourage employees to wear cloth face coverings in the workplace, if appropriate;
Implement policies and practices for social distancing in the workplace; and
Improve the building ventilation system.

The CDC is regularly updating its guidance as more information becomes known about the virus, how it spreads, and how it affects the human body. Employers should regularly consult the CDC website for updates.

What does OSHA Recommend?
Businesses must also consider their obligations under the rules set forth by the Occupational Safety and Health Administration (OSHA). While there are many different OSHA regulations, the key consideration for most employers will be the OSHA General Duty Clause. The General Duty Clause requires employers to provide a workplace that is free from recognized hazards that could cause serious injury or death. In short, employers must provide a safe place for their employees to work.

In connection with COVID-19, OSHA has identified the following specific steps that employers should take to improve workplace safety. Employers should review these guidelines and implement measures to protect employees and avoid citations and fines by OSHA.

Physical distancing of at least 6 feet
Staggering shifts
Allowing remote work
Cross-training employees to minimize the number in the workplace
Encouraging handwashing, alcohol rubs, respiratory etiquette (covering coughs and sneezes)
Encouraging employees to stay home if sick
Prohibiting the use of office equipment by multiple employees
Cleaning surfaces, especially those that may be touched my multiple employees
Identifying and isolating employees who are sick and reporting to others that they may have been in contact with a sick employee, without identifying that employee
Limiting face-to-face meetings
Installing high efficiency air filters and increasing ventilation
Installing physical barriers to protect workers from others
Maintaining regular cleaning and disinfection of the workplace with EPA-approved cleaning materials
Maintaining flexible policies allowing workers to stay home to care for sick family members.

What is an employer’s exposure for failing to follow OSHA rules?

When an employer fails to provide a safe workplace, it can result in citations and penalties in the thousands of dollars. Employers could be cited for COVID-19-related issues such as failing to provide adequate personal protective equipment (PPE); or failing to implement effective measures (for example, physical distancing or enhanced cleaning) to control the spread of the virus.

Employers can expect OSHA to actively enforce the General Duty Clause as employees return to the physical workplace in the coming weeks and months. To minimize risk – and ensure the safety of employees – employers should thoroughly assess the hazards posed by their particular workplace, consider the OSHA guidance, and devise a comprehensive plan for bringing employees back to work.

What guidance has the EEOC issued concerning the return to work?
In devising a return to work plan, many employers are concerned about protecting those employees who may be more susceptible to negative outcomes with respect to COVID-19, namely those over the age of 65 and/or those with certain underlying health conditions. While a knee-jerk reaction might be to prohibit those employees from returning to the workplace, the EEOC cautions employers that their exclusion may run afoul of the Americans with Disabilities Act (ADA). The EEOC has issued updated guidance on how to navigate bringing back employees in a high-risk category.

In its guidance, the EEOC relies on the CDC guidelines concerning individuals who are high-risk. The CDC has advised that COVID-19 presents a higher risk for adults over the age of 65 and those with serious underlying medical conditions, identified by the CDC as chronic lung disease, severe asthma, serious heart conditions, immunocompromised systems, severe obesity (BMI 40 or higher), chronic kidney disease, and liver disease. For these individuals, the CDC encourages employers to “support and encourage options to telework if available” and offer such workers duties that “minimize their contact with customers and other employees.”

But how does an employer identify its vulnerable population? And what if the employer already knows of an underlying condition (perhaps because the employee had disclosed it for a prior accommodation request)?

The EEOC guidance is clear. First, as with any disability, employers may not ask an employee if they have a medical condition. Rather, the process for determining if an employee needs a reasonable accommodation as a result of an underlying condition is the same during the pandemic as it would be for any disability accommodation request – the employee must initiate the process. However, the EEOC has clarified that employers may encourage employees to notify them in advance of a return to work if they may need an accommodation. To that end, employers should consider issuing a communication to their entire workforce that invites employees to bring specific concerns to the appropriate Human Resources contact person (or other person charged with addressing return to work issues). Once that discussion is initiated, employers can rely on their regular practices for engaging in the interactive process under the ADA.

In the case where the employer may already know that an individual is in a high-risk category, the EEOC advises that employers cannot prospectively bar anyone in a high-risk category from returning to the workplace (or take any other adverse action) solely because the employee is in an at-risk category. Rather, the employer would only be able to prohibit an employee from returning to work if the employee’s disability poses a “direct threat” to his or her health that cannot be eliminated or reduced by a reasonable accommodation.

The EEOC also clarified that the direct threat assessment cannot be based only on the fact that the employee has a condition that appears on the CDC’s high-risk list for COVID-19. Instead, there must be an individualized assessment, based on “reasonable medical judgment about this employee’s disability”– not the disability in general. Moreover, even if an employer undertakes the individualized assessment and determines a direct threat exists, the employer still must consider whether the threat can be mitigated through an accommodation (for example, a temporary leave, working remotely, a temporary job transfer).

Employers should be aware that the direct threat standard is very high and difficult to meet – there are likely to be very few “direct threats” that cannot be mitigated through telework or a temporary leave in the eyes of the EEOC.

As always, employers are encouraged to engage in the interactive process with their employees concerning reasonable accommodations, and all employers are urged to promote a telework options where possible. The updated EEOC guidance can be found here.

Conclusion
Employers face significant challenges in mitigating the spread of COVID-19, as states prepare to re-open. Taking precautions recommended by local, state and federal governments and agencies can help limit exposure to the disease, aid in protecting employees’ health and may potentially limit employers’ legal liability.

FAQs

What employers are most affected by these recommendations?
The CDC and OSHA guidelines are likely to have the greatest impact on workplaces with an open floor plan and other areas where workers are in close proximity to one another, and workplaces that allow more than one employee to use the same workspace, office equipment, table, desks and other equipment.

What liability does an employer face for COVID-19 in the workplace?
Workplace illnesses and injuries are typically addressed by a state’s workers’ compensation statutory framework, with some exceptions. Generally, for an illness to be compensable under that system, the employee must have contracted it in the course and scope of employment and it must be related to the work performed by that employee.

Because of the pandemic, and the spread of COVID-19, it remains to be seen whether COVID-19 will be considered a workplace illness in workplaces that are not on the front lines (health care, emergency response or other industries where contact with the virus is likely).

There have already been cases filed in courts where employees have sought to bypass the workers’ compensation statutes and instead seek damages through a civil lawsuit for personal injury. These suits may ultimately prove unsuccessful, but they cost time and money to defend and the outcome is uncertain. Accordingly, employers should stay abreast of local, state and federal guidance, including the CDC and OSHA guidance, and implement prote ctive measures as necessary.

Employers also should be aware that workers’ compensation statutes do not preclude OSHA complaints or ADA/discrimination claims (i.e., a lawsuit stemming from a failure to accommodate), and employers are urged to exercise care in crafting a return to work plan that adheres to local, state and federal programs.

Should an employer adopt leave policies that are more liberal than what the law requires?
It depends. If employees have exhausted sick time and paid emergency leave under the Families First Coronavirus Recovery Act, an employer may wish to grant additional paid leave to retain its workforce, depending on cash flows. If an employer has received a loan under the Paycheck Protection Program (PPP) and will be seeking loan forgiveness, paid leave may assist the employer meeting the requirements for forgiveness. Otherwise, furloughed employees collecting unemployment may be offered their old jobs as part of the return to work process.

Before committing to health insurance coverage for an employee on leave, the employer should check that its group health insurance covers inactive employees on a leave of absence.

Should an employer consider amending its cafeteria plan to allow more flexibility?
Yes. Some employees may have an increase or decrease in medical or dependent care expenses due to unanticipated effects of the COVID-19 pandemic. Cafeteria plans may be amended to permit employees to make certain prospective mid-year election changes for co-paying company group health insurance, or contributing to health flexible spending account s (FSAs), or dependent care assistance programs during 2020.

The cafeteria plan may also be amended to extend the grace period for using 2019 FSA carryovers from March 15 to December 31, 2020. To allow for this special relief, the employer should amend its plan and provide applicable notice to employees.

If the employer chooses to allow for more flexibility in its cafeteria plan, it must adopt the amendment on or before December 31, 2021. The amendment may be effective retroactively to January 1, 2020.

Does the law permit flexibility in how an employer classifies workers returning to work after the COVID-19 shut-down?
No. The same rules apply for classifying employees and independent contractors. Employers that seek to expand or contract the number of workers classified as employees after the shut-down need to comply with the rules for classification. Separately, misrepresentations regarding employee classification may adversely affect PPP loan forgiveness.

Is an employee eligible for any tax breaks to ease its cash flow worries as employees return to work?
Yes. See discussion of employee retention credit and payroll tax delays here.

May an ADA-covered employer send employees home if they display influenza-like symptoms during a pandemic?
Yes. Employees who become ill with symptoms of influenza-like illness at work during a pandemic should leave the workplace. As COVID-19 poses a threat to other workers, an employer can (and should) send home an employee with COVID-19 or symptoms associated with it without violating the ADA.

During a pandemic, how much information may an ADA-covered employer request from employees who report feeling ill at work or who call in sick?
ADA-covered employers may ask employees who report feeling ill at work, or who call in sick, questions about their symptoms to determine if they have or may have COVID-19. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.

During a pandemic, may an ADA-covered employer take its employees’ temperatures to determine whether they have a fever?
Yes. As with all medical information, the fact that an employee had a fever or other symptoms would be subject to ADA confidentiality requirements. Employers likewise may maintain a log of temperature checks, while ensuring confidentiality.

During a pandemic, may an ADA-covered employer ask employees who do not have influenza symptoms to disclose whether they have a medical condition that the CDC says could make them especially vulnerable to influenza complications?
No. However, under these conditions, employers should encourage all employees who are sick to stay at home, which will benefit all employees including those who may be at increased risk of developing complications.

If an employee voluntarily discloses (without a disability-related inquiry) that he or she has a specific medical condition or disability that puts him or her at increased risk of influenza complications, the employer must keep this information confidential.

About the Authors: Mary Kate Geraghty and Evelyn Haralampu

Mary Kate is an experienced trial lawyer and trusted business advisor who concentrates her practice on representing employers and employees in a variety of employment matters, including discrimination, retaliation, wrongful termination, whistleblower, severance/separation, employee classification, wage and hour, health and safety, and employee leave matters. Her practice spans a variety of industries, including higher education, nonprofit organizations, life sciences, chemical manufacturing, technology and financial services. In addition to her employment litigation practice, Mary Kate counsels companies and executives on all aspects of the employment relationship and on employment issues related to mergers, sales and acquisitions. She can be reached at mgeraghty@burnslev.com or 617.345.3272.

Evelyn Haralampu is a partner at Burns & Levinson. She specializes in assisting businesses, executives, and non-profit and governmental organizations in designing employee benefits programs and executive compensation to help clients meet their objectives, while saving and deferring costs through tax efficiencies. Evelyn has served on the ABA’s Subcommittee on Government Submissions, recommending regulatory policies to the IRS, and is a member of the Tax Council of the Massachusetts Bar Association, which influences the development of tax legislation in the Commonwealth. She can be reached at eharalampu@burnslev.com or 617.345.3351.