Although it is too early to know when America’s workforce will return to offices and other places of work, it is prudent for companies to start preparing for the return of employees to the physical workplace. This is particularly true as states and municipalities have begun to lift stay at home orders, in some cases with little notice to private enterprises.
This memorandum discusses key considerations that companies may wish to consider when designing a return to work plan in light of the COVID-19 pandemic.
Companies should establish a multi-disciplinary team that is responsible for developing, implementing and monitoring a return to work plan. This team could be comprised of company leaders from key departments, such as legal, human resources, information technology, operations and health and safety, as well as representatives from employee constituent groups. Companies should also consider retaining external advisors (e.g., public health experts or professionals) to provide additional guidance when needed, especially those companies with facilities that may need reconfiguration to maintain better distancing between employees. Given the uncertainty regarding the lasting impact of COVID-19, the return to work planning team should remain assembled to monitor issues that arise upon the workforce’s return to the office.
Each company’s return to work plan will be unique, and different plans may be required based on location, local requirements and function. Key factors to consider include the location of the workplace, the number of employees working in one location, the ability to ensure proper social distancing within the workplace and employee reliance on public transportation.
It is also critical to design a return to work plan that is sufficiently flexible to adapt to evolving recommendations, guidelines and orders issued by federal, state and local governments, such as the Families First Coronavirus Response Act. For additional information on the Families First Coronavirus Response Act, see our recent client publication,“ Expanded Employee Leave: Application and Enforcement”.
Critically important in designing a return to work plan is developing and implementing workplace controls and strategies to minimize the exposure risks for employees returning to the workplace and mitigating potential liability risks for the employer.
Companies should consult, and continue to monitor, guidelines and recommendations issued by federal agencies and state and local municipalities, beginning with the guidance published by the U.S. Centers for Disease Control and Prevention (CDC) and the Occupational Safety and Health Administration (OSHA), which outline key considerations for planning and preparing workplaces for bringing back employees, including:
The Equal Employment Opportunity Commission (EEOC) also issued, and recently updated, its technical assistance for employers in connection with equal employment laws and COVID-19. One focus of the EEOC’s technical assistance is compliance with the Americans with Disabilities Act (ADA) in regard to return to work issues. For example, the EEOC’s technical assistance states that employers may take body temperatures or perform other health screenings as a condition to enter the workplace, but that employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.
In a May 7th update to its technical assistance, the EEOC clarified that the ADA does not allow an employer to exclude an employee from the workplace solely because of an underlying medical condition that the CDC has identified as potentially placing the employee at a “higher risk for severe illness” if the employee becomes infected with COVID-19. Rather, employers can only exclude an employee from the workplace if the employee’s underlying medical condition poses “a direct threat” to the employee’s health (which the EEOC noted is a high standard) that cannot be eliminated or reduced by reasonable accommodation (absent undue hardship). To that end, the EEOC noted that employers must consider accommodations such as telework, leave or reassignment.
In a further update to its technical assistance, on June 17th, the EEOC stated that the ADA does not allow employers to require antibody tests before permitting employees to re-enter the workplace. The EEOC referenced interim guidelines posted by the CDC in which the CDC states that antibody test results “should not be used to make decisions about returning persons to the workplace.” The EEOC also clarified that antibody tests are different than COVID-19 viral test (a test to detect the presence of the COVID-19 virus), which are permissible under the ADA.
The technical assistance also provides additional guidance regarding reasonable accommodation and undue hardship in light of COVID-19.
Preparing the workplace for employees also requires identifying and complying with state and local orders issued in response to COVID-19. Some states and municipalities have issued, and continue to issue, their own orders for companies within their jurisdictions in dealing with COVID-19. For example, Ohio, Delaware and the city of San Francisco have issued orders requiring or encouraging temperature screenings before employees are permitted to enter the workplace. Companies that conduct temperature screenings (or any other kind of health screening) should ensure that such screenings are implemented on a nondiscriminatory basis, performed in a private setting and, if possible, by an individual with proper training (e.g., a third-party healthcare provider). Any information obtained from screenings must be kept confidential in accordance with applicable law, such as the ADA (requiring protection of medical records and information) and the Health Insurance Portability and Accountability Act of 1996 (HIPAA).
Other states, such as Vermont, have issued orders requiring companies to take certain preventive measures in accordance with guidelines issued by their applicable state health agency and the CDC, including requiring employees to wear face coverings when in the presence of others, providing proper access to handwashing facilities and requiring mandatory health and safety training.
Companies that lease office space within a larger building should consult with the building’s management to determine what safety protocols are in place for tenants and whether the building’s management is requiring tenants to implement any additional safety measures. Businesses in any shared spaces should coordinate with other business that use the same space to ensure consistent approaches.
Companies may wish to phase-in employee returns on a gradual basis to limit the number of employees present at a single location at any given time. Alternatively, or in addition, employers could provide staggered worktimes to achieve the same result, if that meets the employer’s business needs. A phased approach also has the added benefit of reducing the burden on the company and its cleaning crew in managing and performing routine or enhanced office cleaning and disinfection. To further mitigate the risk of spreading the COVID-19 virus within an organization, companies could also physically separate teams within the office or implement a team-based daily or weekly rotation system in which certain teams are in the office while other teams work remotely. As part of the phased approach, companies could consider polling their workforce to see if any employees would volunteer or otherwise be willing to be part of the first phase of returning employees, if that is practicable from a business perspective.
Companies should be mindful of existing federal, state and local anti-discrimination laws, including the Age Discrimination in Employment Act, the anti-discrimination provisions in the ADA and Title VII of the Civil Rights Act of 1964 (prohibiting anti-discrimination employment practices), when determining which employees should return to work, the timing of such return and, if applicable, which recently terminated employees should be rehired. For additional information regarding employee anti-discrimination developments related to COVID-19, see our client publication, “Developments in Workplace Discrimination Guidance in the Wake of COVID-19”.
Relatedly, companies with a workforce that relies heavily on public transportation may want to consider providing commuter benefits (or additional commuter benefits) to reduce the risk of exposure to COVID-19 in commuting to and from the workplace. For example, companies could adopt a program to offer employees the ability to contribute pre-tax dollars to qualified parking or provide a shuttle service, secure parking spaces (or additional spaces) or bicycle storage places. Companies should be mindful that certain commuting benefits could be taxable to the employees as additional compensation.
A company’s return to work plan should also include processes for monitoring developments that could result in a significant increase in the number of employee absences (whether due to illness, providing care for a family member or safety concerns with returning to the workplace) or require the company to close its workplace (e.g., a COVID-19 outbreak within the workplace). Companies should be prepared to continue operations with a reduced workforce, which could be accomplished by implementing flexible remote working policies and practices, identifying employees who can perform multiple functions within the company, cross-training employees to perform essential business functions and hiring (or re-hiring) additional employees on a part-time basis. For a detailed discussion on best practices and key considerations in planning for unexpected key executive absences, see our recent client publication, “Succession Planning in a Time of Crisis”.
Companies must also be prepared to close workplaces quickly in the event of a reoccurrence. A well-developed return to work plan will cover this possibility. Companies that have already implemented remote working over the last several months should evaluate that by practice to determine areas of improvement for sustaining business operations on a remote basis.
In order to mitigate liability risks when bringing back employees to the workplace, companies should follow the guidance and recommendations issued by applicable government agencies and ensure that the implementation of such guidelines complies with existing law and regulations. This is especially critical given (1) the sensitive personal health aspects of return to work implementation plans and risk of discriminatory impact and (2) the anticipated increase of personal injury lawsuits brought by employees (or wrongful death lawsuits brought by their estates) who claim to have contracted COVID-19 at the workplace. Although these claims require the employee (or their estate) to prove that the employer’s negligence or recklessness caused the employee to become infected, which is a generally high standard to meet, complying with applicable guidelines, recommendations and law will be important for companies in defending against those claims.
In addition, directors should be mindful of their fiduciary duties in light of COVID-19. Directors owe fiduciary duties of care and loyalty, which requires them to act in good faith, on an informed basis and in the best interests of the company and its stockholders, and can be exposed to liability for breaching such duties. To mitigate fiduciary concerns with respect to bringing back employees to the workplace, boards of directors should proactively engage with management to ensure that the board is engaged in active oversight. Boards should also actively monitor legal and regulatory developments and, if necessary, seek expert advice in carrying out fiduciary duties.
Finally, companies should review their forms of release agreement to ensure that personal injury claims are adequately released by the employee. To that end, while releases are generally executed upon an employee’s cessation of services, consideration should be given to having employees execute these agreements during employment, such as in connection with the payment of a bonus.
As states and cities begin formulating plans to reopen, it is critical that companies begin planning and preparing for employees returning to the workplace. Having a well-developed return to work plan will allow companies to safely and successfully bring employees back to the workplace and adapt to evolving guidance and regulatory requirements.
 The guidance in this memorandum generally applies to all members of the workforce, regardless of whether they are common-law employees, partners or independent contractors. Note, however, that certain protections provided by the American Disabilities Act and state law may only apply to common-law employees.
 According to the EEOC, a determination that an employee’s medical condition will pose a direct threat to the employee’s health requires an individual assessment “based on a reasonable medical judgment about the employee’s medical condition—not the medical condition in general—using the most current medical knowledge and/or on the best available objective evidence.” The EEOC listed the following factors employers must consider in conducting an individual assessment: the duration of the risk, the nature and severity of the potential harm, the likelihood the harm will occur and the imminence of the potential harm. Relevant to this analysis is the likelihood that the employee will be exposed to the virus at the worksite, taking into account the measures that the employer is taking in general to protect all employees, such as social distancing.