Cities and states across the country are at different stages in their fights to “flatten the curve,” but the virus has already drastically reshaped our world. As organizations across the country undertake the reopening process, business owners are wondering how to return to “business as usual” in a way that’s safe for employees and customers – all while mitigating their risk.
As an employment lawyer, I’ve been working around the clock to help clients prepare for reopening. How can businesses open safely for their customers? What are the rules for employees who don’t want to return yet? What laws and guidelines are out there, and how do business owners stay on top of them? My firm and I are regularly fielding these kinds of questions from clients, and the answers are especially critical for healthcare professionals since their jobs inherently require close contact with others (think people like dentists, optometrists, massage therapists, OTs, and PTs). Here are some best practices to consider as you reopen your business.
1) Know the rules of the road.
The volume of available information about COVID-19 can feel overwhelming. Moreover, because the virus is still relatively new, public health protocols have evolved over the last few months, which means that today’s best practices may be different in three months. For this reason, you should plan on regularly monitoring new developments and be prepared to adapt accordingly. Below are critical and reliable resources to review as you prepare to reopen. Bookmark them for future reference!
- Your State & Local Requirements: Each state has different “reopening” guidance available on their websites. Some states offer instructions that are specific to various sectors of the economy (e.g., retail vs. manufacturing vs. professional services). Additionally, some cities and towns have implemented requirements – and ones that are even stricter than those of the parent state (e.g., New York state vs. New York City). If you operate offices in multiple states – or even multiple cities within a single state – you should review the requirements for each location. (Try looking for this information on the .gov website for your particular city and/or state.)
- U.S. Department of Labor (DOL): Since the country largely shut down in early March, several major pieces of federal legislation were passed, including the Families First Coronavirus Response Act (“FFCRA”), which provides certain categories of COVID-19-related leave to employees under certain circumstances. The DOL’s website provides detailed answers to frequently asked questions about the FFCRA, and guidance about how to handle both paid sick and family medical leave are regularly updated. The website also has a model FFCRA workplace poster, which is mandatory for employers with less than 500 employees to post for employees.
- Centers for Disease Control (CDC): The CDC has posted guidance for businesses and workplaces that’s specific to COVID-19. The CDC is a valuable resource and offers useful fact sheets and posters, though I have found that more detailed guidance for particular business sectors is coming out of the individual states.
- Equal Employment Opportunity Commission (EEOC): The EEOC enforces federal laws aimed to prevent discrimination in the workplace. The EEOC has specific guidance titled “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act” (ADA) that it has updated since the COVID-19 pandemic hit. For example, prior to COVID-19, employers were generally not permitted to take employees’ temperatures because it was considered a prohibited medical examination under the ADA. However, the EEOC loosened those restrictions in connection with the pandemic, and it has since become more commonplace to see temperature screenings in workplaces.
- Professional Associations: In addition to government guidance, your professional association can be an excellent resource for tips and best practices for your specific industry. Here are some examples:
2) Make a health and safety plan.
Some states are requiring that businesses have written plans and policies in place before reopening. Even if your state does not require this, it’s still a great idea to have a plan of action nailed down ahead of time. Written policies are easier to implement in practice and will be an important reference for you and your employees. You may also find that writing plans down will trigger more questions, and therefore result in more thorough policies. Your written plans should cover the following general areas:
- Cleaning & Disinfecting Protocols: This includes the frequency of cleaning, including specific high-touch areas (e.g., doorknobs, light switches, handrails), how cleaning practices will be implemented, the selection of appropriate cleaning products, and how to disinfect the workplace in the event of a COVID-19 diagnosis.
- Social Distancing Protocols for Employees & Customers: This includes the use of face coverings for employees and/or customers, the installation of signage to urge distancing, the removal of chairs in waiting rooms and conference rooms, and the reorienting of desk spaces to ensure that employees can maintain at least six feet of distance during the workday.
- Hygiene Protocols for Employees & Customers: Employees and customers should have ready access to hand sanitizer and hand-washing capabilities, as well as any necessary personal protective equipment, such as masks and gloves.
- Screening Protocols for Employees & Customers: Develop policies to ensure that employees are not coming to work with symptoms of COVID-19 and establish a procedure in the event that an employee shows signs of illness during a workday and needs to go home. Then create “return-to-work protocol” so that employees with COVID-19 stay out of work long enough to ensure that they are no longer contagious upon return. For the safety of your employees, screening policies for customers and workplace visitors should also be developed (e.g., can parents accompany a child during a child’s visit? Can siblings attend? Can children accompany a parent?).
- Training & Operations: Employees should be trained on all of the above policies. The message to employees should be that these protocols are for everyone and are not optional. For industries in which employees are physically touching clients, such as healthcare, these protocols are especially critical.
3) Review your liability waivers and consider updating them to include COVID-19.
As you are updating your policies, consider a fresh look at your liability waivers. Liability waivers are useful tools to limit your business’s exposure to a potential claim from a customer for injuries caused by some negligence on the part of an employee. By signing a waiver of liability, customers acknowledge particular risks and expressly forfeit their right to pursue any claims that arise from those risks.
As an example, imagine that you’re an optometrist and run a small office. You receive a claim from a patient that she contracted COVID-19 during an examination and, as a result of the illness, missed significant time from work, was briefly hospitalized, and has ongoing health issues. Because of the highly contagious nature of COVID-19, it will be difficult for the patient to prove that she contracted the virus from your office. Nonetheless, had the patient signed a COVID-19 waiver, you would be in a stronger position to defend your business against a lawsuit.
If you already use waivers on a regular basis, it may be prudent to update them to expressly include COVID-19 as a risk. If you do not ask customers to sign waivers as a regular practice, now may be a perfect time to integrate them into your usual practices and procedures.
4) Anticipate employee relations issues.
As you reopen, you may face questions and comments like these from your employees:
- “I’m afraid to come back to work because of COVID-19.”
- “I live with an elderly parent and I’m afraid to come back to work because of potential exposure to COVID-19.”
- “I’m diabetic and I’m afraid to come back to work because I’m more high-risk for COVID-19 complications.”
- “My children’s day care is still closed because of COVID-19, and I don’t have anyone to take of my kids while I’m at work. What am I supposed to do?”
- “I’m making more money collecting unemployment benefits than I did while I was working. Can I just wait until the end of July to come back?”
- “I’ve been doing fine working from home for the last few months and I like telecommuting. Why can’t I continue to work from home?”
- “I’m not going to wear a face mask. It’s hard to breathe in it, and I think that the risks of COVID-19 are overblown anyway.”
Honestly, there isn’t enough space for me to cover all the questions and comments you should prepare to navigate. But these issues are challenging and can be fraught with risk. Here are a few general concepts to keep in mind:
- If employees refuse to return to work because they’re making more money on unemployment benefits, or because of a generalized fear of COVID-19, those aren’t job-protected reasons. However, an employee with an underlying medical condition that may require a reasonable accommodation would likely trigger the “interactive process” under the ADA. On the other hand, having a family member with an underlying condition does not trigger ADA protection.
- The FFCRA may provide paid leave for an employee who has childcare issues related to COVID-19. I also suggest checking with your payroll company for resources about the administration of FFCRA leave.
- Ultimately, employers control the terms and conditions of an employee’s employment, which includes the type of protective equipment to wear, and the location of the employee’s work site (e.g., home vs. office).
All of these scenarios are highly fact-specific, and an experienced employment lawyer can help you manage these situations to best mitigate risk.
5) You can do it!
Navigating our post-COVID world may feel daunting, but you aren’t alone. Companies across the country are all dealing with these new challenges, and it is a learning experience for everyone. Be patient with yourself, don’t be afraid to ask questions, and lean on your professional network. Believe that you can tackle these obstacles, and that you’ll probably emerge more innovative and resilient than before. Good luck!