As government authorities look to implement business reopening measures and lift shelter-in-place orders, employers must be mindful as they move employees back into the workplace. Below are considerations employers should keep in mind when reopening their physical work locations. To view a sample return to work checklist, click here.
How do we prepare our workplace to prevent and reduce the spread of COVID-19?
Organizations should focus on reducing transmission among employees, maintaining healthy business operations, and maintaining a healthy work environment. The CDC has published guidance on their website, available here.
How do we decide if we should administer temperature checks and what do we need to know to be in compliance?
The EEOC has issued guidance around taking temperatures. You can find detailed information on their website, here. Measuring an employee’s body temperature is considered a medical examination. Due to COVID-19 being classified as a pandemic, employers may measure employee’s body temperature. However, employers should be aware that some people with COVID-19 do not have a fever. As with all medical information, this information would be subject to ADA confidentiality requirements. If an employer is performing temperature checks, the information must be documented and placed in the employee’s medical file.
How can employers maintain physical distancing?
Here are a few ways to maintain social distancing in the workplace:
- Staggered work shifts
- Limit number of employees in breakrooms, restrooms, meeting rooms, etc.
- Increase physical space between employees at the worksite
- Implementation of flexible meeting and travel options (e.g., postpone non-essential meetings or events)
- Deliver services remotely (e.g., phone, video, or web)
- Deliver products through curbside pick-up or delivery
What do we do if we have employees who do not feel safe returning to work? Can we replace them? What other options do we have?
It is recommended that you use caution when deciding to replace an employee who refuses to work because of concerns about COVID-19. Here are a few things to keep in mind:
- Recalled employees may have a right to job-protected leave under a city ordinance, state law, or the FFCRA for employers under 500 employees.
- Employees who are in a high-risk category–either because they are immunocompromised or have an underlying condition–may be entitled to a reasonable accommodation under the Americans with Disabilities Act (ADA) or state law if their situation does not qualify them for leave under the FFCRA (or if they have run out of that leave). It would be a reasonable accommodation under the circumstances to allow the employee to work from home, or if working from home is not possible, to take an unpaid leave.
- Employees who live with someone who is high risk are not entitled to a reasonable accommodation under federal law, but it is strongly recommended allowing them to work from home if possible or take an unpaid leave if requested. Otherwise, they may decide to quit and file for unemployment insurance. If you want to keep them as an employee, being compassionate and flexible is a good approach.
- Under Occupational Safety and Health Administration (OSHA) rules, an employee’s refusal to perform a task will be protected if all of the following conditions are met:
- Where possible, the employee asked the employer to eliminate the danger, and the employer failed to do so; the employee refused to work in “good faith,” which means that the employee must genuinely believe that an imminent danger exists
- A reasonable person would agree that there is a real danger of death or serious injury; and there isn’t enough time, because of the urgency of the hazard, to get it corrected through regular enforcement channels, such as requesting an OSHA inspection.
Check state and local laws to see if additional protections may apply.
Instead of replacing employees who express fear about contracting COVID-19, it is recommended that you consider methods to encourage employees to come to work and to help put their minds at ease. Consider emphasizing all of the safety methods you have put in place (such as handwashing, frequent disinfection, social distancing rules, staggered shifts, or more extreme measures if warranted by your industry).
How do we deal with the growing anxiety that staff may have?
These are unprecedented times and employees may be feeling anxiety for numerous reasons. We encourage Employee Assistance Programs (EAP) be made available, as an additional insurance coverage option for employees. Below are some resources for employees:
BPM’s HR Consulting team is here to help guide, support and facilitate our clients through this challenging time and beyond. Contact Jill Pappenheimer, HR Consulting Partner.