Returning Employees to Work: What Should US Employers Think About?

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Introduction

Operating a business during a pandemic presents unique issues for employers seeking to protect themselves, their employees and the public. As states loosen shelter-in-place restrictions and allow some non-essential businesses to resume operations, there are several issues that employers face as employees return to work. Employers should consult state and local laws and regulations to make sure that they are allowed to reopen. At all times, employers are expected to make their best efforts to obtain public health advice that is contemporaneous and appropriate for their location, and to make reasonable assessments of conditions in their workplace based on this information.

Safety in the Workplace

Most important, employers must develop plans to reduce the likelihood that employees will contract COVID-19 when they return to work. Employers should focus on three areas in particular: (1) cleaning and sanitizing the workplace; (2) social distancing and hygiene in the workplace; and (3) screening employees and visitors to the workplace.

Cleaning and Sanitizing the Workplace

Before employees return, employers should deep clean the workplace, and they should continue to clean and disinfect frequently and regularly. The Center for Disease Control (CDC) has provided appropriate guidance for non-healthcare spaces. The Environmental Protection Agency (EPA), together with the CDC, has produced similar guidance for public spaces and workplaces.

Social Distancing and Hygiene

Employers should develop protocols to maximize space among employees, customers and visitors in their physical workspaces. Ideally, employees, customers and visitors should be able to maintain at least six feet of distance between them. Some strategies for increasing spacing include:

• Allowing employees to telework;
• Limiting travel;
• Limiting meetings, events, and other social gatherings;
• Staggering work time or schedules to limit contact among employees;
• Restricting non-employee visitors;
• Increasing the space between desks, cubicles and other workspaces;
• Staggering meal and rest breaks;
• Installing partitions or shields; and
• Closing off common spaces where employees or others are likely to congregate.

The Occupational Safety and Health Agency (OSHA) guidance on preparing the workplace for COVID-19 also encourages employers to implement certain engineering controls, such as altering airflow through the workspace's HVAC system. The OSHA guidance divides workplaces into four categories based on risk of worker exposure, and then recommends appropriate measures for each category.

Employers should also require employees to practice good hygiene while in the workplace. These practices include:

• Staying home if employees are sick (with COVID-19 or symptoms of the illness);
• Regularly washing hands with soap and water for at least 20 seconds;
• Avoiding touching noses, mouths, and eyes; and
• Covering coughs and sneezes with a tissue or elbow.

Employers should provide the workplaces with the following:

• Ample supplies to support hygienic practices, including hand soap, hand sanitizer, tissues, and garbage receptacles.
• Personal protective equipment (PPE), such as masks and gloves, where appropriate based on the OSHA and CDC guidelines. OSHA guidelines note that employers are obligated to provide their workers with PPE when necessary to keep them safe while performing their jobs.

Screening

Employers should institute measures to screen employees, vendors, customers, and other visitors entering the workplace. Indeed, because of the pandemic, employers have leeway to make certain medical inquiries that would otherwise be impermissible under the Americans with Disabilities Act (ADA). Such measures could include:

• Temperature checks;
• Screening questions, such as those below (and anyone who has answered yes to these questions may be sent home and told not to come to the workplace until at least three days without symptoms).
• Have you or has anyone in your household experienced any COVID-19 symptoms in the last fourteen days?
• Have you been symptom-free for at least three days?
• Have you been exposed to anyone with a confirmed case of COVID-19?

• Requiring a medical examination (test) if the employer reasonably and objectively believes that an employee's current medical condition either impairs the employee's ability to perform essential job functions or poses a direct threat to the health or safety of the employee or others. The Equal Employment Opportunity Commission (EEOC) has stated that COVID-19 may be deemed a direct threat, and has specifically opined that the ADA's requirement that any mandatory medical test of employees be "job related and consistent with business necessity" may be satisfied to allow an employer to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus. The EEOC has made clear that the employer should ensure that the test is accurate and reliable. For example, employers may review guidance from the US Food and Drug Administration about what may or may not be considered safe and accurate testing, as well as guidance from CDC or other public health authorities, and check for updates.
• Requiring employees who have been on leave to provide a doctor's note certifying fitness to return to work under the ADA (However, some state and local laws governing emergency paid sick leave disallow this practice.).

Notably, employers must maintain any COVID-related information gathered about an employee's health separately from the employee's general employment file and must treat it as a confidential medical record. Employers should also be very careful not to disclose the names of workers who may be infected when providing information to the workforce about the spread of the virus.

Hiring During the COVID-19 Pandemic

Employers who are hiring may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as they do so for all employees hired into the same job. For example, such screening may include taking an applicant's temperature. Employers may also delay the start date of an employee who has COVID-19 or symptoms associated with the disease. An employer who needs an employee to start immediately may withhold or withdraw an offer to an applicant who exhibits COVID-19 symptoms without violating the ADA.

Employee Rights to Leaves of Absence

Employees returning to work may also have expanded rights to leaves of absence for COVID-related reasons.

The federal Families First Coronavirus Response Act (FFCRA) requires employers with fewer than 500 employees to provide up to 10 days of paid sick leave related to COVID-19. The FFCRA also amends the Family Medical Leave Act (FMLA) to allow eligible employees to take up to 12 weeks of job-protected leave to care for a child younger than 18 whose school is closed or whose childcare provider is unavailable. Our previous Advisories provide a detailed summary of the FFCRA's key provisions, and the Department of Labor's subsequent guidance.

State and Local Leave Provisions

Some states have passed laws extending requirements similar to those in the FFCRA to employers with more than 500 employees. For example, California recently issued an emergency order requiring that employers with more than 500 employees provide paid leave to food service workers who have symptoms of COVID-19 or are under a quarantine order. New York State enacted an emergency paid sick leave law that requires, among other things, that employers provide eligible employees with job-protected paid sick leave and extends the state's paid family leave benefits to certain employees impacted by the pandemic.

Local governments have also passed ordinances extending the provisions of the FFCRA to employers not covered by the federal act or extending the reasons for leave to those beyond those provided under federal law. For example, San Francisco and San Jose have issued ordinances imposing paid sick-leave requirements on employers with more than 500 employees. Los Angeles has also issued an ordinance which applies to employers with more 500 employees but extends leave to an employee who is "at least 65 years old or has a health condition such as heart disease, asthma, lung disease diabetes, kidney disease, or weakened immune system."

Employers should check to see whether such laws are in effect in their area.

Liability Issues for Employees Who Contract COVID in the Workplace

Workers' Compensation and Civil Suits

Most states require employees who are injured or become ill due to a condition at their workplace to bring their claims through the relevant state workers' compensation system. 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. So, for example, an attorney who catches COVID-19 from a coworker may not have a cognizable workers' compensation claim. But a health care worker who contracts the virus while treating infected patients at work probably does. Some states are expected to issue orders creating a rebuttable presumption that "essential workers" who are infected with COVID-19 are infected on the job.

Employers whose employees are likely to encounter COVID-19 in the scope of their employment should evaluate whether they have adequate workers' compensation insurance coverage and coverage limits that include occupational diseases.

Depending on the circumstances, an employee may attempt to bypass the workers' compensation system and instead pursue a civil suit for damages. This is already an issue for some employers, which has been sued by the estates of former employees who died due to complications from COVID-19.¹ The suit alleges that management was aware that multiple employees had exhibited symptoms of COVID-19, but did not take measures to protect other employees. The suit also alleges that Walmart "knew or should have known that individuals at the store were at a very high risk of infection and exposure" because of the high volume of customers.

While it is unclear whether such suits will be successful, employers should rigorously follow guidance from OSHA, the CDC, and other state and local agencies to protect employees from exposure to COVID-19 to the greatest extent possible.

OSHA

OSHA requires employers to provide employees with a safe place to work. Employers may be responsible for workplace safety violations related to the coronavirus outbreak under OSHA's "general duty" clause, which requires that each employer furnish to each of its employees a workplace that is free from recognized hazards that are causing or likely to cause death or serious physical harm. In a pandemic, an employer could be cited for a general duty clause violation where, for example:

• The virus was present in the workplace and the employer's efforts to control exposure were insufficient;
• Employees were required to perform tasks that exposed them to the virus without adequate PPE.

To avoid violating the general duty clause, employers should employ the strategies detailed above, and should remain up-to-date on the latest OSHA and CDC guidance and state and local requirements.

OSHA requires employers to record and report illnesses (including COVID-19) resulting from exposures in the workplace that are work-related. This determination is fact-specific, but OSHA regulations presume work-relatedness for exposures occurring in the work environment. As a result, employers are likely required to report on their OSHA Logs COVID-19 cases for employees whose jobs expose them to COVID-19 sources (e.g., medical professionals). This determination has and continues to become more blurry as COVID-19 becomes more pervasive, especially as states begin to reopen.

Wage and Hour Implications

As a result of the pandemic, many employers may face a considerable drop in business volume. As a result, they may have to cut employee hours or wages. Employers should be sure to abide by relevant wage and hour laws in making these decisions. Those laws are discussed in our previous Advisory.

There have been some reports of employees' walking out or refusing to return to work as a result of heightened COVID-19 fears. Generally, where employees are represented by a union, the collective bargaining agreement will contain a no-strike provision. Such agreements typically require unionized employees to raise complaints through contractual grievance procedures and prohibit those employees from striking or walking out.

Even for nonunion employees, however, the National Labor Relations Act (NLRA) protects concerted activity designed to increase workplace safety. If two or more nonunion employees stop work to protest work conditions, their action is likely to be deemed protected concerted activity. In that case, the NLRA may limit or preclude discipline or termination. By contrast, the NLRA typically does not protect similar activity by a single employee, unless it is a continuation of earlier concerted activity.

© Arnold & Porter Kaye Scholer LLP 2020 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.