By: Robert B. George, Esquire
As many states are announcing plans to reopen businesses, employers need to be concerned about a number of operational and employment-related issues that can result in potential liability if not handled properly.
A primary concern for employers as they begin to reopen businesses is and should be the safety of their employees. In that regard, the Occupational Safety and Health Administration (OSHA), which requires employers to maintain a safe work environment, and the Center for Disease Control (CDC) have issued the following recommendations:
- Provide appropriate PPE, if available, such as face coverings and gloves;
- Actively encourage employees to stay home if they are sick;
- Provide appropriate training regarding business-essential job functions and worker health and safety, including proper hygiene practices and the use of any workplace controls, including personal protective equipment (PPE);
- Discourage workers from sharing phones, desks, offices, and other work tools and equipment when possible;
- Reconfigure physical workspaces by rearranging workstations to space out employees; place barriers between workspaces; close or modify common areas and high-touch surfaces;
- Limit face-to-face meetings and encourage the use of videoconferencing;
- Promote frequent and thorough hand washing and cough etiquette;
- If feasible, establish alternating days or staggered shifts to reduce the total number of employees in a facility at a given time.
A number of states have issued return to work plans with extensive safety requirements. For example, some States have set forth specific requirements related to distancing, staggered attendance and daily symptom assessments. It also requires that employees, with limited exception, wear protective face coverings. Violations of state orders can result in civil penalties or even criminal charges. Therefore, employers should closely review the requirements for each of the States in which they operate in order to ensure that an appropriate plan is in place that is compliant with the requirements of that state.
Since the start of the pandemic, the Equal Employment Opportunity Commission (EEOC) has provided guidance regarding health-related inquires and employer testing to give employers significantly more latitude than normally permissible. In that regard, the EEOC has indicated that it is permissible for employers to:
- take employee temperatures or require employees to conduct self-checks;
- ask employees if they are experiencing COVID-19 symptoms, such as fever, chills, cough, shortness of breath or sore throat;
- send employees home if they display symptoms of COVID-19;
- require employee’s to obtain a doctor’s note certifying their fitness for duty because such inquiry would not be considered disability-related under the Americans with Disabilities Act (ADA); and
- administer COVID-19 testing to employees before they enter the workplace.
Importantly, and before taking temperatures or doing any diagnostic testing, employers should consult with counsel to ensure compliance with all state and federal regulatory restrictions. The types of questions asked and the types of tests used can trigger confidentiality, privacy, collective bargaining, workplace safety and other employment requirements.
Notwithstanding the implementation of appropriate safety measures in the workplace, there is likely to be and employers should expect that some of their employees may want to continue work from home for a myriad of reasons, including, but not necessarily limited to, a simple fear and anxiety related to COVID-19. While generalized fear of COVID-19 in the workplace is not necessarily considered a disability, the fear could nevertheless be a symptom of a covered disability under the ADA. Accordingly, it is important for employers to give due consideration to any such request, and make a good faith effort to determine whether the employee has a disability under the ADA. Notwithstanding, best practice may dictate in favor of allow such employees to continue to work from home for a continued period of time, where feasible, with the understanding that the situation will be re-visited and re-evaluated at a later date.
As businesses commence to reopen, it is also important for Employers to be mindful of the protections afforded to employees who report what they believe to be health and safety concerns related to COVID-19. In that regard, on April 8, 2020, OSHA issued a statement “reminding employers that it is illegal to retaliate against workers because they report unsafe and unhealthful working conditions during the corona-virus pandemic.” Employers must be sure to carefully review and comply with the evolving COVID-19-related restrictions and safety measures and provide regular communications to employees about the steps they are taking to keep the workplace clean and safe. Employers should also encourage employees to internally report any health and safety workplace concerns immediately and train managers on how to respond to properly respond to any such complaints.
Understandably in response to the whole COVID-19 crisis, many employers have been forced to make some very difficult employment related decision, including, but not necessarily limited to reductions in salaries or hours, furloughs, layoffs and terminations. In order to avoid potential discrimination claims, it is important that employers both document and base any such decisions on objective business considerations. Where possible, employers should consider alternative options that would allow employers to reduce employee hours by as much as 50 percent while the employees collect partial benefits to replace a portion of their lost wages.
Additionally, while states are issuing plans for reopening businesses, most states have closed schools for the remainder of the school year and have not yet reopened daycares or announced plans for summer camps. Employees who need leave to care for children because of school and daycare closures may be eligible for expanded FMLA or sick leave under the Families First Coronavirus Response Act (FFCRA) or for pandemic unemployment assistance under the CARES Act.
As we begin this new and hopefully temporary “new normal”, employers need to be mindful that there is no standard approach in regards to safely and effectively bringing employees back into the workplace. In an attempt to create a workable balance between protecting the rights of the employee and the interest of business, employers should try to remain flexible when possible and maintain ongoing and open dialogue. Employers navigating the complexities of state and federal employment laws related to COVID-19 should consult with counsel to ensure legal compliance and minimize their potential exposure.
The Law Firm of DiOrio & Sereni, LLP is a full-service law firm in Media, Delaware County, Pennsylvania. We strive to help people, businesses and institutions throughout Southeastern Pennsylvania solve legal problems – and even prevent legal problems before they occur. To learn more about the full range of our specific practice areas, please visit www.dioriosereni.com or contact Robert B. George, Esquire at 610-565-5700 or at [email protected].
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