As in every state, Virginia businesses and localities have struggled with reduced operations and complete shutdowns resulting from the COVID-19 pandemic. With the Governor’s announcement that current restrictions are expected to end on May 14th, businesses will begin to reopen and localities will return to normal operations. This reopening will come in phases and create new challenges as employers face varying operational restrictions and requirements at each phase. The following is a checklist of practical steps employers should consider before (and after) opening their doors to employees and patrons:
- Follow guidance issued by the CDC, OSHA, and the Virginia Department of Health. Federal and state agencies are expected to continue to issue guidance and mandates concerning operational requirements and safety protocols. It is important that businesses understand what rules will govern their operation. This will include regulations concerning social distancing, wearing masks or face coverings, and cleaning protocols. These requirements will vary depending on the size and nature of the business, so it is important that businesses tailor their practices to the nature of their industry and the risks to their workers and patrons.
- Develop written protocols and a response plan. Write it all down. OSHA recommends that employers prepare an “infectious disease preparedness and response plan,” “develop policies and procedures for prompt identification and isolation of sick people if appropriate,” and “develop, implement, and communicate about workplace flexibilities and protections.” OSHA guidance on preparing your workplace can be found in its Guidance on Preparing Workplaces for COVID-19.
- Form teams at work to address policy changes and procedures used to address COVID-19 related workplace concerns. Make sure that employees know who to contact with questions. It is important that information and practices remain as consistent as possible throughout different segments of your workplace and that employees receive prompt guidance on issues such as who may use break rooms and when, staggered worktimes, and telecommuting. Coordinate these efforts in a way that makes sense for your business needs. Make sure that policies address enforcement related issues, such as violations that might result in employee termination.
- Notify employees and patrons of all updated policies and procedures related to COVID-19. The best way to mitigate liability is by clearly informing employees and patrons about your policies and procedures. Following guidance of the CDC and local health departments when forming a workplace plan can mitigate the risk of lawsuits down the road. However, such a plan is only effective when it is communicated effectively and frequently to your workforce and patrons.
- Clearly inform employees of attendance expectations but accommodate when necessary. The necessity of teleworking will create challenges for employers who require regular attendance as an essential job function. Employers should clearly communicate to employees where applicable that teleworking during the pandemic is a temporary emergency solution and regular attendance remains a job requirement. Of course, it is also essential that employers provide reasonable ADA accommodations to employees, which may include teleworking or time off depending on the circumstances. In addition, don’t forget about the new paid leave benefits that may be available to your workforce under the Families First Coronavirus Act through the end of 2020, which law protects employees from retaliation if they seek such leave. Around the country, new lawsuits are emerging on the basis of parental or caregiver discrimination under this law, which may overlap with laws prohibiting the discrimination of employees on the basis of their sex or age.
- Make necessary changes to workplace cleaning and hygiene practices. Employers will need to place an increased emphasis on cleaning practices. Particular emphasis should be placed on sanitizing high-traffic community areas such as cafeterias and breakrooms, and elevators. Make hand sanitizers readily available and allow employees to take more frequent breaks for handwashing.
- Balance concerns for safety with confidentiality and privacy requirements. Maintain confidentiality of employee health information unless required to disclose by law. Store health information and medical documentation in separate files from employee personnel files. Under current regulations employers may take employee temperatures and record relevant health information. These practices should be done in a manner that maintains social distancing and protects employee privacy.
- Use caution when making decisions about an employee’s return to work based on medical conditions. Employers can and should prohibit employees from coming to work if they are ill with COVID-19 related symptoms. The EEOC has, however, warned employers not to prohibit employees from returning to work based on a medical condition or disability unless the medical condition poses a direct threat to the employee’s health and safety “based on a reasonable medical judgment about this employee’s disability — not the disability in general — using the most current medical knowledge and/or on the best available objective evidence.” See EEOC Guidance on COVID-19. In all cases, such decisions must be made based on an individualized assessment rather than a general practice or policy.
As the situation surrounding COVID-19 rapidly changes from day to day, and as laws and executive orders change, businesses and localities must stay up to date, and continually adjust their policies, plans, and workplace procedures. The Labor and Employment Law team at Sands Anderson are here to help you navigate the maze of evolving laws and legal challenges.