Reopening in the Wake of COVID-19: What Employers Need to Know
By Jennifer Ryback and Amy Kearney
Attorneys at McGuire, Craddock & Strother, P.C.
May 1, 2020
The timeline[1] for reopening workplaces in the wake of COVID-19 will look different for each business and will need to be individually tailored depending on the business’s industry and geographic location, among other factors. As essential businesses continue to operate and nonessential businesses begin to reopen, employers should carefully consider what actions can be implemented to keep the workplace safe for their employees. This article includes a non-exhaustive list of such actions, and ends with a discussion of some guidance for employers as they rehire employees that may have been laid off or furloughed.
Keeping the Workplace Safe
Section A below provides a summary of the “minimum recommended health protocols for all businesses choosing to operate in Texas,” as set forth in the Governor’s Report to Open Texas[2] in connection with Executive Order GA-18[3] that relates to the reopening of businesses in Texas. As noted by Governor Abbott, it may be appropriate for employers to adopt additional protocols. Section B provides some additional protocols and actions employers should consider implementing, where applicable and appropriate, to help keep the workplace safe. Similarly, Section C provides some additional protocols and actions employers should consider implementing to prepare employees to return to the workplace. As additional guidance is released from the Department of Labor,[4] the Occupational Safety and Health Administration,[5] the Center for Disease Control,[6] the Equal Employment Opportunity Commission,[7] and other governmental agencies with authority over these issues, employers should review such guidance and update their workplace safety protocols accordingly.
A. Minimum Recommended Health Protocols in the Governor’s Report to Open Texas
1. Train Employees on Best Hygiene Practices: Train all employees on appropriate cleaning and disinfection, hand hygiene, and respiratory etiquette (e.g., cough into a tissue if possible; if not possible, then cough into elbow rather than hands). Have all employees wash or sanitize their hands when entering the workplace.
2. Screen Employees for Possible COVID-19 Symptoms or COVID-19 Exposure: Before an employee enters the workplace, confirm that the employee does not exhibit any symptoms of possible COVID-19. Common symptoms include shortness of breath, cough, fever, chills, repeated shaking with chills, muscle pain, headache, sore throat, and a new loss of taste or smell. Follow the Governor’s specific guidelines for allowing employees who have been diagnosed with or exposed to COVID-19 to return to the workplace.
3. Impose Social Distancing and Face Mask Protocols: If at all possible, have employees maintain at least 6 feet of separation from other individuals. Consider having all employees wear non-medical grade face masks or cloth face coverings over the nose and mouth.
4. Employer-Provided Meals: If an employer provides a meal for employees, have the meal individually packed for each employee.
5. Health Protocols for Facilities: Regularly and frequently clean and disinfect any regularly touched surfaces, such as doorknobs, tables, chairs, restrooms, and any other common areas. Disinfect items that come into contact with customers. Make hand sanitizer, disinfecting wipes, or soap and water readily available to employees and customers. Place easily visible signage at the workplace to remind employees and customers of best hygiene practices.
6. Additional Protocols Specifically for Retailers: In addition to the other protocols discussed above, Governor Abbott set forth the following protocols that apply specifically to retailers: (1) consider dedicating a certain period of time each day for only at-risk customers or deliver purchased goods to vehicles to reduce the need for at-risk customers to enter the store; (2) if practical, monitor what items customers touch while visiting the retail establishment, and clean or disinfect those items when the customer leaves; and (3) institute contactless payment, and if not available, minimize contact during the payment process.
7. Additional Protocols Specifically for Restaurants: In addition to the other protocols discussed above, the Governor set forth the following protocols that apply specifically to restaurants: (1) ensure that parties always maintain at least 6 feet of separation from other parties, including while waiting to be seated in the restaurant; (2) make a hand sanitizing station available at the entrance of the restaurant; (3) allow no more than 6 people to sit at a table; (4) do not leave traditional table top items on an unoccupied table, such as condiments or silverware; (5) provide condiments only upon request, and in single use, non-reusable portions; (6) use disposable menus (new for each patron); (7) if a buffet is offered, have restaurant employees serve the food to customers rather than having customers help themselves; (8) institute contactless payment, and if not available, minimize contact during the payment process; (9) have employees wash or sanitize their hands between interactions with customers; (10) consider having an employee manage and control access to the restaurant, including opening doors, in order to prevent patrons from touching door handles; (11) clean and disinfect the area used for dining after each group of customers depart; and (12) clean and sanitize restaurants daily.[8]
B. Additional Actions to Prepare the Workplace
1. Confirm the Workplace is Properly Sanitized: Confirm, either with the landlord or directly with the cleaning staff, that proper precautions are being taken when sanitizing the workplace and all common areas located in the building. For example, confirm that cleaning products and protocols that are recommended by the CDC and any other applicable governmental agency are being used and followed. The current guidance provided by the CDC is available at the following link: https://www.cdc.gov/coronavirus/2019-ncov/community/disinfecting-building-facility.html. Request a written record of all cleanings that occur.
2. Communicate with Vendors and Other Visitors: Confirm with all regularly scheduled vendors that proper precautions are taken when delivering items to the workplace. For example, to the greatest extent possible, all vendors should not deliver items beyond the entrance of the workplace. Limit other visitors to only those that are necessary and maintain a log with the visitor’s name and contact information. Require vendors and other visitors to adhere to local guidelines with respect to wearing face coverings or other applicable safety protocol.
3. Make Changes to Workplace Layout: Make changes to the workplace layout so that the proper amount of distance (at least 6 feet) is between each employee. Locate areas in the workplace where the availability of cleaning products can be increased. For example, provide hand sanitizer that consists of at least 60% alcohol and disinfectant wipes near all entryway and exit areas and near any items that are used by multiple employees, like printers or coffee machines. Similarly, locate areas where the necessity for using commonly touched items can be decreased. For example, prop open doors that do not need to remain closed for security reasons, install no-touch trashcans, and provide employees with their own set of inexpensive office tools that they would otherwise share, such as staplers and writing utensils. Consider placing brightly colored sticky notes next to those often-touched items that are unable to be eliminated (e.g., light switches and buttons), in order to heighten employees’ awareness of those items.
4. Pay Special Attention to Common Areas: Allow access to the breakroom and encourage employees to remain in the workplace during lunch breaks in order to limit potential outside exposure, but consider assigning employees staggered lunch hours to ensure social distancing can still be practiced. Ensure that tables in the breakroom are properly spaced apart. Substitute shared snack bins with bins of single serving snacks. Ensure that all areas, but especially the common areas, are stringently cleaned on a frequent basis.
5. Consider Whether Temperature Screening is Appropriate: It is clear under the current government guidance that an employer may take an employee’s temperature. Note that an employer should not apply temperature screening in a discriminatory manner and should instead uniformly screen employees. Any information collected during a temperature check should be treated as confidential medical information. Make sure to consider how any employee who refuses to submit to the temperature screening will be handled.
6. Develop a Plan for Handling an Affected Employee: Develop a written plan for handling an employee who tests positive or is presumptively positive for COVID-19, which should include a protocol for when the employee may be allowed to return to the workplace, communicating with any other employees or third parties who may have been in close contact with the affected employee, and cleaning and disinfecting the employee’s workplace.
C. Additional Actions to Prepare Employees
1. Reduce Employee Exposure Risks: Determine which employees can feasibly continue working from home once the workplace is reopened and allow them to do so. For those employees that will be returning to the workplace, consider implementing alternating work weeks or staggered arrival and departure times. Such actions will diminish the likelihood of employees coming into close contact with each other in the common areas. Ensure that all employees have adequate face masks and other protective items, as necessary and required or recommended by applicable governmental bodies.
2. Encourage Communication: It is important for employers to appreciate that many employees are anxious about returning to the workplace at this time. Establish a two-way line of communication between upper management and employees to help ease that anxiety. Let employees know what proactive steps are being taken to ensure that the workplace is a safe environment, and provide employees with clear guidance on sanitary measures the employees will be expected to take once the workplace is reopened. For example, employers may want to institute a “clean desk policy” wherein each employee’s desk must be cleared by the end of the day, so that the desk may be properly sanitized on a daily basis. Encourage employees to speak up if they have any concerns about returning to the workplace, and work to reasonably address those concerns. To avoid whistleblower claims, employers should be careful not to retaliate against workers who report unsafe or unhealthy conditions.
3. Accommodate Requests for Leave: Notify employees about their leave rights under the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA)[9] and provide forms for employees to request such leave and any other appropriate documentation. If at all possible, consider working with employees who may not technically fall within either statute or who may have already exhausted available leave.
Rehiring Employees
As businesses reopen, employers will need to rehire employees but may not be in a position to rehire all employees that have been laid off or furloughed. When making decisions on which employees to rehire, employers should be careful to mitigate the risk of potential claims of discrimination for bringing back certain employees and not others. Employers should have legitimate, non-discriminatory reasons for selecting which employees to rehire, which could include well-documented excellence in job performance, well-documented past performance issues, or seniority.
In making these decisions, employers should document the legitimate, non-discriminatory reasons for their rehiring decisions. If an employer is relying on past performance issues as a reason not to rehire an employee, the employer should make sure that those performance issues were well-documented prior to that employee’s lay-off or furlough. If there is no such documentation, an employer may face an argument that the past performance issues were just pretext for discrimination.
Employers should not make rehiring decisions based on who may be at higher risk of COVID-19 complications. Employers should instead discuss that risk with those employees and determine whether a delayed return to work or telecommuting may be possible.
For more information or for advice on whether and how a specific business may reopen or to determine a procedure for rehiring employees, please contact Jennifer Ryback at jryback@mcslaw.com or Amy Kearney at akearney@mcslaw.com.
This correspondence should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult a lawyer concerning your own situation and legal questions. The information contained herein is current as of the date of this article.
[1] For an in-depth discussion of the timeline and governmental guidance in reopening the economy, please look for the firm’s companion article, “Reopening the Economy: When and How?”, authored by Preston W. Rose: https://www.mcslaw.com/covid-19-article/reopening-the-economy-when-and-how/.
[2] The Governor’s Report to Open Texas may be found at: https://gov.texas.gov/uploads/files/organization/opentexas/OpenTexas-Report.pdf.
[3] Executive Order No. GA-18 may be found at: https://lrl.texas.gov/scanned/govdocs/Greg%20Abbott/2020/GA-18.pdf.
[4] For a variety of resources published by the DOL, visit: https://www.dol.gov/coronavirus.
[5] For a variety of resources published by OSHA, visit: https://www.osha.gov/SLTC/covid-19/.
[6] The CDC published “Reopening Guidance for Cleaning and Disinfecting Public Spaces, Workplaces, Businesses, Schools, and Homes,” which is available at: https://www.cdc.gov/coronavirus/2019-ncov/community/reopen-guidance.html.
[7] The updated guidance from the EEOC, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” addresses issues relating to testing and confidentiality of medical information, reasonable accommodations, and pandemic-related harassment.
[8] Please note that the Governor’s Report to Open Texas also includes special guidance for movie theaters, museums and libraries, outdoor sports, and places of worship.
[9] The forms of notice that covered employers were required to already post or communicate via email to employees under the Families First Coronavirus Response Act (FFCRA), are available under the heading, “Posters,” at: https://www.dol.gov/agencies/whd/pandemic.