After almost 6 weeks into working from home, and with almost 30 million people not working at all, many employers and employees are beginning to contemplate the return to work for millions of employees. But what exactly is it we will be returning to? Who will be returning? When will they return? What will the work environment be like? What if something goes wrong?
The answers to these questions may seem hypothetical now, but as North Carolina begins to (hopefully) progress through the three phases outlined by Governor Cooper, now is a good time to at least begin considering these issues. Businesses that take action will likely have better chances of keeping employees/customers healthy — increasing the likelihood of staying open and avoiding legal pitfalls.
And while daunting, much like many of the at-home tasks we have accomplished during the stay-at-home order, the following are likely to be good operational practices, notwithstanding a global pandemic.
PLANNING FOR A RETURN TO WORK
Before most businesses return to work, according to Governor Cooper, our state must experience improvements in a few key metrics: infection rates, hospitalizations, testing, tracing and availability of Personal Protective Equipment (PPE). As there appears to be at least leveling of the trajectory of lab-confirmed cases, this phase could be coming to an end around May 8. So, in this phase, let’s get to work on preparations.
Staged Return: If employees have adjusted well to working from home, they should be encouraged to do so, and employers should consider a staged return. As no solution will be perfect, having some time with a small workforce to begin to implement COVID-19 policies may give an employer time to make adjustments. In addition, employers may consider staggered shifts or even alternate work days/weeks.
Guidelines and Policies: The CDC has released helpful guidelines for all employers and for small businesses. Guidelines for workplace safety have also been published by OSHA. These guidelines can be used to draft employment policies specific to COVID-19, which should be written and presented to all employees. Now is the time to draft those policies. Here are some suggestions for what they should include:
- Taking Temperatures and Asking Medical Questions and Testing: One of the most common questions is whether an employer can take an employee’s temperature before he/she returns to work. According to the EEOC, the simple answer is: yes. Employers may also ask employees if they are experiencing COVID-19 symptoms, specifically, fever, chills, cough, shortness of breath or sore throat. Importantly, employers must keep information about employee illness confidential. Likewise, employers may administer COVID-19 testing to employees.
- Wearing Masks, Washing Hands and Spacing: An employer may require employees to wear protective gear (masks and gloves) and to observe infection disease prevention and control practices (washing hands and social distancing). Resources for proper ways to wear masks, hand washing instructions and delineating safe work spaces may be helpful. Employers may also consider providing masks, distributing hand sanitizers and taping personal spaces.
- Doctor’s Notes: Employers may require a doctor’s note to certify that an employee is fit to return to work. However, employers should be flexible in the form of these notes, given likely anxiety due to visiting healthcare providers. In some instances, an email from a doctor may be enough.
Policy Manager: While it may be helpful to have input from a larger task force to deal with COVID-19, employers should identify a single individual responsible for the company’s response. This person should be familiar with legal requirements, instruct managers on their duties and be able to apply policies consistently across an employer’s workforce to avoid claims of discrimination or retaliation.
NAVIGATING LEAVE REQUIREMENTS
One of the biggest issues confronting employers as news of COVID-19 began to spread was what to do with sick employees or employees who need to be out of work for other reasons related to the disease. Congress acted quickly to answer many of these questions, but then stay at home orders mooted many of those issues. Now that people will be returning to work, and there is no vaccine or treatment for the virus, continued spread is inevitable. In this period, it will be critical for employers to accurately respond to employees that are out of work for a reason related to COVID-19.
Protected and Paid Leave under the Families First Coronavirus Response Act (FFCRA): This is likely to be the most common, possibly contentious and burdensome issue to come out of COVID-19 and our government’s response. This is not an exhaustive discussion of these topics but intended to highlight some of their requirements.
Emergency Family and Medical Leave Expansion Act (EFMLA): Much has been written about the EFMLA. In sum, employers with less than 500 employees must provide 12 weeks of protected leave and two-thirds of regular pay for any employee that is out of work due to loss of child care. As businesses return to work, child care facilities may be closely behind, but there are indications that that may not happen until Phase 2 or 3, so employers should be prepared to deal with this early on.
Emergency Paid Sick Leave Act (EPSLA): Employers with less than 500 employees must provide 2 weeks of paid sick leave at regular rate of pay for employees who are: (1) subject to a quarantine order; (2) have been advised by a medical profession to self-quarantine; and (3) has experience COVID-19 symptoms and is seeking a medical diagnosis. Employers must provide 2 weeks of paid sick leave at two-thirds of the regular rate of pay for an employee who is (1) caring for a person subject to a quarantine order; (2) caring for a child whose school or childcare provider is closed; or (3) experiencing any other substantially similar condition.
AVOIDING LEGAL PITFALLS
To date, many employment decisions have been easy because nearly everyone has been ordered to stay home. Likewise, layoffs and furloughs have been so widespread that it’s unlikely for there to be claims that they were discriminatory. On the other hand, the Paycheck Protection Program has protected many jobs. But, as employees begin to return to work, employers will have to start making hard decisions regarding who returns to work, whose hours are reduced or who will be laid off and how to treat returning employees.
Adverse Employment Decisions: Decisions regarding who returns to work and who doesn’t must be made on a neutral basis to avoid charges of discrimination or retaliation. The same goes for decisions to lay off, furlough or reduce working hours for certain employees. Employers must consider and document demographic information when making each of these decisions.
Wage and Hour Considerations: One of the issues with employees that are permitted to continue working from home is maintaining an effective timekeeping practice. Employers should ensure employees are accurately keeping and providing to the company records of time worked. This is particularly true as a 9:00 – 5:00 workdays and 40-hour work weeks have lost their rigor. Employees, even if working from home on flexible schedules, are entitled to overtime pay for work beyond 40 hours.
Americans with Disabilities Act (ADA): Often, the most difficult analysis in responding to a requested accommodation is whether that accommodation is reasonable and whether it would impose an undue hardship or significant difficulty. Undoubtedly, COVID-19 is imposing historic burdens on employers. According to the EEOC, “the sudden loss of some or all of an employer's income stream because of this pandemic is a relevant consideration. Also relevant is the amount of discretionary funds available at this time.” In any event, employers should work with employees to accommodate disability requests in order to avoid potential liability.
Returning to work will cause a mixture of emotions for both employers and employees. Employers may be eager to get their workforce back to produce revenue again, but they’ll also be concerned about providing a safe workplace. Employees who may be looking for a return to normalcy may not be so eager to get back out into public where there is an increased likelihood of exposure to COVID-19.
Planning, flexibility, communication and consistency will all be keys to a safe return to work for both employers and employees. Following the guidance set out above will hopefully put employers on good path to doing just that.