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Reopening the Pacific Northwest: A Checklist for Employers

May 21, 2020

Blerina Kotori and Christopher Morehead

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With Governors Brown and Inslee announcing their respective phased approaches to reopening the Oregon and Washington economies, employers need to start planning for how they will resume operations in a safe and legally-compliant manner given the challenges of our new reality. The following checklist provides a framework of issues and tasks that employers should consider implementing or addressing before reopening their doors for business. For more information on this topic, including additional steps to take to prepare for reopening your workplace, please listen to our webinar on this topic.

Are you up-to-date on guidance from relevant authorities prior to reopening?

• Oregon: As we previously noted, Governor Brown and the Oregon Health Authority released sector-specific guidelines, some of which are required, before employers in certain industries may reopen.
   
• Washington: Employers with operations in Washington should similarly be aware of and follow the specific requirements for businesses in Governor Inslee’s “Safe Start” plan.
   
• Federal: In addition, employers should consider familiarizing themselves with relevant guidance from various federal agencies, including the CDC and EEOC.
   
• State Agencies: Employers should monitor any guidance issued by OSHA, Oregon Bureau of Labor and Industries, and Washington’s Labor and Industries for additional information.
   
• Local Ordinances: as counties and cities begin softening their restrictions, employers should not forget to check local authorities in the event they provide additional requirements.

Have you implemented a plan to keep your workplace safe?

• Policies: Employers should develop written policies that comply with guidance from the relevant authorities to make the workplace as safe as practically possible. The policies should clearly communicate the company’s plan to employees, how it will work, how it will be enforced, and who employees should contact with questions. A general list of topics may include:
   
  • Social distancing protocols
  • Protective equipment (i.e., use of masks)
  • Sanitation
  • Rules for high-traffic areas (i.e., corridors, break rooms, etc.)
  • Requirements for employees feeling symptoms of COVID-19
  • Temperature checks (where appropriate)
     
• Training: Set aside time for training employees on your safety policies before you reopen. Assume that it will take time for employees to learn and adjust to the new physical work place.
   
• Remain Vigilant: Enforce your policies. Monitor for signs of infected employees. Send employees home who show signs of COVID-19. Work with potentially infected employees to trace who they might have been in contact with and where the employee worked while potentially infected. Determine whether other employees need to be sent home, or whether third parties should be notified of contact with a potentially infected person. Maintain employee confidentiality and have a plan in place for time-sensitive communications and actions following a potential outbreak or positive diagnosis.
   
• Ease into Reopening: Although employers may resume operations in some capacity, employers should still encourage remote work whenever possible and continue to hit the pause button on unessential face-to-face meetings and travel. Where work from home is not an option, consider staggering work hours, alternating shifts, changing hours of operation, or soliciting volunteers for the first wave of employees to return to work, which may have the added benefit of boosting morale.

What is your plan for recalling laid off or furloughed employees?

• Employees Might Not Want to Return: Don’t assume all employees will want to return to work. In fact, many employers are already facing this issue due to a number of reasons, including fear. Be prepared to address each employee’s hesitation about returning on a case-by-case basis. Some situations might implicate state, federal, and local leave laws, whereas others might implicate the Americans with Disabilities Act (ADA). A one-size fits all approach may cause significant headaches down the road and even litigation; consider contacting your employment counsel for help navigating these thorny issues.
   
• Anti-Discrimination/Retaliation Laws Still Exist: Relatedly, don’t forget that decisions about which employees you recall (and which ones you don’t) can result in claims that (re)hiring decisions were motivated, in part, by protected reasons. For example, excluding older populations on the assumption that they would prefer to stay home because of their heightened vulnerability to COVID-19 is an invitation for a lawsuit. Make sure that your recall plan limits exposure to discrimination claims.
   
• Reinstate Leave Banks Where Appropriate: Some jurisdictions require that rehired employees have their leave banks reinstated. Oregon, for example, requires that employees who are rehired within 180 days attain reinstatement of their Oregon sick leave bank
   
• First-Time Remote Workers: Employers utilizing remote, work-from-home arrangements for the first time should consider implementing policies and expectations during the new arrangement, even if temporary. This is particularly true for nonexempt employees to minimize risk of overtime claims or unpaid wages.

Are you prepared for the wave of benefits questions?

• Employer-Provided Benefits: As employees return to work, many of them will likely have lots of questions on their mind about benefits. With pay cuts, loss of hours, or extended periods of job loss, employees may return with questions and requests for adjustments to their benefits. For example, employees may ask about bonus programs, 401k contributions, changes to their health insurance (for example, to add a spouse who lost their job), or other changes to their “cafeteria plan.”
   
• Leave Laws: With the passage of the Families First Coronavirus Response Act (FFCRA), there is yet another leave law that employers in Oregon and Washington need to consider. Just because an employee may qualify for paid (or unpaid) leave under a state law, doesn’t necessarily mean they qualify for leave under FFCRA or traditional FMLA and vice versa. Make sure that – when assessing whether an employee qualifies for leave under one fact pattern – you are not overlooking an employee’s rights to leave under another applicable law.

If you have questions about the issues raised here, please contact any of the attorneys in our Labor & Employment Practice Group.

 

About Tonkon Torp

Tonkon Torp LLP is a leading business and litigation law firm serving public companies, substantial private enterprises, entrepreneurial businesses, and individuals throughout the Northwest. For more information about our services visit www.tonkon.com.