Getting Back to a New Workplace Normal

By: Steven Boyne

As employers begin to consider opening their offices and bringing back their employees and inviting other people into their offices, such as patients, there are many issues that should be considered and planned for BEFORE the front door is opened.

Quick Legal Advice – COVID-19 is new to everyone, including Government regulators and plaintiff lawyers, so we are all learning as we go along. The best legal advice in these uncertain times is:

1. Find out what other similar situated companies are doing, as you may be held to their standards;
2. Find checklists and advice from well reputable entities;
3. Document your decisions; and
4. Communicate.

OPENING YOUR DOOR TO YOUR EMPLOYEES

As an employer you have a responsibility to provide a safe working environment, and as of today it is clear that the following is a minimal list of considerations:

• Implement and enforce social distancing
• Provide written advice to your employees that closely mirrors guidance from OSHA and the CDC, which includes –
  • Frequently washing hands;
  • Don’t share technology, such as keyboards, or touch screens;
  • Wear a mask when social distancing is not possible;
  • Regularly clean office surfaces; and
  • Don’t come to work if you have a fever, coughing, or similar symptoms.
• Limit the number of people in a room and/or elevator
• Consider staggered work and break schedules
• Do not provide communal food or drinks
• Use disposable plates, cups and utensils

EMPLOYEE HEALTH

Many employers are considering taking their employee’s temperature and asking them a series of questions about their health, before allowing them to enter the office building. While at first blush this may make sense, the EEOC has issued a list of considerations that should weighed before implementing such a program:

• If the employer records the temperatures it is considered a medical record, and now both the American with Disabilities Act, and the HIPAA privacy laws will apply
• What types of records should an employee keep, and where should they be kept?
• Has the employer complied with the EEOC’s Pandemic Preparedness in the Workplace and the Americans With Disabilities Act?
• There are limits to the types of questions that you can ask
• There are limits to not hiring a person who may have COVID-19 symptoms
• What if the employee has no symptoms but is a carrier – has the employer created the incorrect illusion that they are providing a COVD-19 safe workplace?

Another new norm that employers need to consider is what if an employee is unwilling to come back to work due to a fear that they will catch COVID-19. Does the ADA require the employee to make a “reasonable accommodation?” Does it a make a difference if individual is older, or pregnant? Can you let the employee go, can you furlough the employee, can you allow one person to work from home, but make everyone else work from the office?

In today’s environment there are many unknowns, and few certainties beyond tomorrow, next week, next month, and next year will be different. The key to survival is Plan your Work and Work your Plan. Also, finally don’t forget to communicate and document.