Considerations for Preparing to Return to the Workplace
On April 29, 2019, Governor Ron DeSantis issued Executive Order Number 20-112 (“Order”), which details specific guidelines for Phase 1 of reopening Florida and allows some businesses to begin operating on May 4, 2019. For example, pursuant to the Order, in-store retail sales establishments may open storefronts if the establishment does not operate at more than 25% of its building capacity and abides by safety guidelines issued by the CDC and OSHA, and certain restaurant and food establishments may also begin to offer on-premise consumption subject to the restrictions outlined in the Order. In addition, elective medical procedures may resume subject to certain conditions set forth in the Order. The full order can be found at the following link: Executive Order Number 20-112.
In addition, on May 1, 2020 Pinellas County issued new guidance that aligns with Governor DeSantis’ Order. The Pinellas County guidance can be found on Pinellas County News, County Aligns with Phase 1 of Governor’s Plan for Recovery. The City of Tampa has also published its own Frequently Asked Questions concerning Governor DeSantis’ Order to reopen Florida.
While we are hopeful that Phase 1 goes smoothly and that more businesses can begin to re-open or operate at greater capacity, we also understand that there may be questions and concerns as we move through this recovery process. As such, we wanted to remind you of some employment related considerations when re-opening your business:
1. Ensure a Safe Working Environment.
Pursuant to the Occupational Health and Safety Administration (“OSHA”), employers have certain safety obligations in the workplace. Measures for protecting workers depend on the type of work being performed and exposure risk to COVID-19, including the potential for interaction with people with suspected or confirmed COVID-19 and contamination of the work environment. In assisting employers with meeting OSHA requirements, OSHA has issued several alerts for certain industries such as construction, manufacturing and retail. With regards to the retail industry, OSHA recommends that employers allow employees to wear face coverings and to practice sensible social distancing, maintaining six feet between co-workers and customers, where possible. On April 30, 2020, Secretary Eugene Scalia issued a statement that the key to this process will be workplace safety as individuals transition back into the workforce. To that end, the Department of Labor (“DOL”) also released a statement that as the DOL continues to develop guidance and information to assist workers and employers, it is seeking input from employers and others concerning challenges that may be faced as businesses re-open. The online input period extends from April 30, 2020 through May 7, 2020. After May 7, it is likely that the DOL and/or OSHA will issue additional guidance on workplace safety as there are many topics that remain undetermined, such as an employer’s obligation to provide face coverings, which are not considered personal protective equipment, in a retail environment. Additional information can be found on OSHA’s COVID-19 Control and Prevention and the DOL’s Opening America’s Workplace Again National Online Dialogue websites.
2. Review the Center for Disease Control (“CDC”) Guidelines.
Many government agencies, such as OSHA and the Equal Employment Opportunity Commission (“EEOC”), are evaluating employer obligations and requirements in accordance with guidance from the CDC. For example, the CDC has recently published its Reopening Guidance for Cleaning and Disinfecting Public Spaces, Workplaces, Businesses, Schools and Homes. While the guidance primarily addresses how to clean and disinfect a space, it also it reminds individuals to maintain certain practices such as social distancing, frequent handwashing, and wearing face coverings. It is likely that as more states begin to reopen, the CDC will issue further guidance on workplace practices to slow the spread of COVID-19.
3. Perform Health Screenings per Public Health Guidance.
The EEOC has issued technical assistance questions and answers concerning What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. This guidance clarifies that employers may take the temperature of an employee during the COVID-19 pandemic because the CDC has acknowledged community spread of COVID-19 and issued attendant precautions. Before deciding to perform temperatures check, however, employers should be aware that an elevated temperature may not signal a COVID-19 infection, and many who are contagious never exhibit a fever or other symptoms. In addition, an employer should consider how it will handle employees who refuse to have their temperatures taken and how it will address sending employees home who have a fever. These answers may be industry specific as healthcare workers and first responders may have detailed CDC guidelines that must be followed. If an employer does decide to check employee’s temperatures prior to work beginning, the employer should ensure that there is social distancing while employees are standing in line to have their temperatures taken. Temperature checks, however, should be performed as privately as possible, and the identity of the individual who has a fever must be kept confidential. It is also recommended that a less invasive infrared digital thermometer be used rather than a more invasive oral thermometer. Finally, if an employer performs temperature checks, the employer should identify and train the individuals who will be checking temperatures. These individuals should be provided protective clothing, which may include gloves, masks, eyewear, and gowns. Ultimately, temperature checks can be an imperfect measure of contagion risk and should be considered one of many tools to prevent and control the spread of COVID-19.
Even if an employer decides not to check employee temperatures prior to beginning work, the employer may still ask employees if they are experiencing symptoms of COVID-19, such as fever, chills, cough, shortness of breath and sore throat. As with all medical information, this information, in addition to the employee’s temperature, must remain confidential.
The EEOC has also reminded employers that guidance from the CDC will likely continue to change throughout the COVID-19 pandemic. In other words, as the CDC changes its guidelines in response to any recovery or resurgence, the ability to check temperatures or inquire about certain symptoms may change.
4. Use Neutral Criteria When Selecting Employees to Return to Work.
When selecting which employees will return to work, we suggest using a neutral criterion, such as seniority, to avoid any claims of discrimination. For example, selecting only the youngest employees to return to work while telling older workers to stay home, may violate age discrimination laws. Similarly, refusing to select an employee with a pre-existing health condition may violate disability discrimination laws. Regardless of the non-discriminatory criteria used, we recommend documenting the reason that each employee was chosen to return to work, particularly if employees will return in waves or if it is anticipated that not all employees will return.
5. Remember New Legislation such as the FFCRA and the CARES Act.
The Families First Coronavirus Response Act (“FFCRA”) became effective on April 1, 2020, and it remains effective until December 31, 2020. As such, employers with fewer than 500 employees may be required to provide paid leave to employees for qualifying reasons related to COVID-19, including if 1) the employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19, 2) the employee has been advised by a health care provider to self-quarantine related to COVID-19, 3) the employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis, 4) the employee is caring for someone who is under an isolation order or has been advised to self-quarantine, or 5) the employee is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19. The Department of Labor’s Families First Coronavirus Response Act: Questions and Answers is a useful resource for answering some basic questions about the new law. In addition, if you have a Paycheck Protection Program Loan (“PPP Loan”) through the CARES Act, we encourage you to continue to be mindful of those requirements and to seek legal counsel when necessary. You can find previous articles on these new laws, and other COVID-19 related topics, on our website at Johnson Pope News Resources.
6. Remain Aware of Employee Issues.
Many employees will be stressed or uncertain about the future. Be vigilant in addressing any discriminatory comments or actions, particularly if the comments are based upon a person’s national origin or related to COVID-19 or the coronavirus. We also encourage you to follow applicable federal, state or local guidance for addressing any employee concerns related to their health or safety. As a final reminder, be mindful of retaliation issues as retaliation is prohibited under federal and state law when an employee in good faith raises concerns about paid leave, workplace accommodations, safety, or other perceived workplace issues.
7. Train Your Managers.
As businesses reopen, it is important to make managers cognizant of emerging issues and new situations that may arise during recovery. New policies relating to CDC and DOL guidance, such as policies on symptom reporting, social distancing, face coverings, cleaning and space-sharing, and staffing and scheduling, may need to be put in place. Employers should be prepared to train their managers on these new policies as well as how they will be enforced. For employers with fewer than 500 employees, managers also need to be trained on the leave requirements of the FFCRA and how to recognize that an employee may need qualifying leave. In addition, managers should be reminded of disability laws relating to reasonable accommodations, confidentiality of health information of employees, and anti-retaliation provisions. Finally, employers should make managers aware of the business’ timekeeping and pay obligations under the Fair Labor Standards Act, particularly as teleworking presents unique timekeeping issues.
8. Be Flexible.
This is new territory for all of us, and as you know, circumstances are changing rapidly. New issues and situations will arise that simply cannot be predicted. We will all have to remain flexible in finding solutions to new workplace issues. As much as we would like to give you a simple guide to reopening, the answers to many issues are still unclear. We are prepared to assist you with addressing your individual concerns as they arise.
THIS ARTICLE IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND SHOULD NOT BE CONSIDERED LEGAL ADVICE. LEGAL ADVICE CANNOT BE GIVEN WITHOUT INFORMATION ABOUT YOUR SPECIFIC SITUATION.