Last month, we discussed ideas on how to manage a business and a workplace amid a pandemic. This month, we discuss opening up your business and returning employees to the workplace, from remote locations, furlough (unpaid leave of absence) or layoff (termination of employment with recall potential).
Some states are experiencing decreases in COVID-19 cases and are anxious to reopen. The White House has issued guidelines for states to consider when reopening. Citing DHEC projections that South Carolina was beyond the estimated peak in COVID-19 cases, Gov. Henry McMaster issued a new executive order on April 20, which allows certain “non-essential” businesses to reopen. Gov. McMaster also has formed a COVID-19 advisory team to consider and recommend economic revitalization plans assist in reopening South Carolina.
There is every reason to expect that momentum to reopen will increase.
Protecting the Workplace
Employers which have remained open throughout the pandemic, albeit on a limited basis, are already familiar with guidance from the Centers for Disease Control and Prevention on protecting the workplace and assessing possible exposures.
The CDC continuously updates this guidance and has added additional guidance, including what to do in the event of a confirmed or suspected exposure (search their site for “cleaning and disinfecting your facility”) and factors to consider in returning critical employees to work after a suspected exposure (“safety practices for critical workers with potential exposures”). In addition, the CDC has provided general community mitigation guidance which provides very helpful information on how to protect those present in various communities, including workplaces.
Using these resources, employers can put together a plan, with reasonable measures, to allow a safe return of employees to the workplace, including:
- Form a team to develop, implement and manage local protocols and logistics.
- Take an inventory of and order necessary sanitary supplies and protective equipment.
- Develop and implement a site disinfection protocol, an isolation protocol to follow if an employee becomes symptomatic or reports a possible exposure, a process for receipt and disinfection of inbound materials, supplies and packages.
- Maintain social distancing by use of techniques such as staggered shifts, alternative workweeks (e.g. Monday-Thursday and Friday-Sunday), and altering office layouts.
Employers also should consider implementing measures for screening employees returning to the physical workplace. The Equal Employment Opportunity Commission has now acknowledged that employers may implement temperature screening measures in response to the COVID-19 pandemic. EEOC also has confirmed that employers “may ask such employees if they are experiencing influenza-like symptoms, such as fever or chills and a cough or sore throat.” Moreover, EEOC has issued guidance that an “employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.”
Employers wishing to use these screening techniques should seek guidance from health officials, follow manufacturer’s directions and consult with legal counsel. As with any medical related inquiry, information gained from either of these screening techniques should be maintained strictly confidential.
Rehiring furloughed employees
Many concerns related to the initial hiring process likewise apply in the return to work or rehire context. Returning all furloughed or laid off employees back to full duty generally does not present serious legal risk. It is unlikely, however, that many employers will be able to bring back all employees at the same time. Employers should exercise caution in selecting those who come back in the initial waves.
We all have learned that COVID-19 particularly affects vulnerable individuals and the instinct may be to protect them from possible workplace exposures. Telling older workers or those with immunodeficiency issues, for example, to wait before coming back on the payroll may seem prudent, but it also could lead to age or disability discrimination suits.
In choosing employees for return or rehire, employers should identify specific business needs and legitimate non-discriminatory reasons for the selections. Some selection factors may include skill sets needed, record of productivity, job criticality, cross training and seniority, among others. It also will be important to select appropriate decision makers and train decision makers on appropriate selection criteria and Equal Employment Opportunity principles.
Managing the reluctant employee
In some sense, workplaces utilizing good sanitation methods and social distancing are safer than other settings, such as churches or grocery stores. There even have been press reports of a high proportion of COVID-19 cases arising from home exposures.
Nevertheless, some workers who remained in active status while working from remote locations may be reluctant to return to a traditional physical workplace at this time. If employees can remain productive by continuing to telework, employers should consider giving weight to such preferences for the moment.
Moreover, some employees may have complications from COVID-19 infections (e.g., pneumonia) or preexisting medical related conditions that may qualify as disabilities under the ADA, triggering the duty to provide a reasonable accommodation. In the context of a pandemic, some accommodations may meet an employee’s needs on a temporary basis without causing undue hardship on the employer.
The reality is that the return to work process may take a while, so having fewer employees in the workplace may be beneficial. Over time, employers will be able to gradually learn and implement existing and newly developed processes.
This viewpoint originally appeared in the May 4, 2020, print edition of the GSA Business Report.
Phillip A. Kilgore has been in the practice of litigation and labor and employment law in the Greenville office of Ogletree Deakins since 1986. He is the office managing shareholder.