As the United States slowly begins to reawaken and try to shake off the economic nightmare created by the Coronavirus pandemic, employers need to take operational steps necessary to promote effective health and safety practices dictated by law and good sense.
Making the matter more difficult are the large number of federal, state and local regulatory bodies responsible for imposing and enforcing these laws and declarations. This is especially problematic for multistate employers who have to deal with wildly varying restrictive environments. While some states seem to be rushing to reduce their restrictions, others are making little or no change.
The Trump Administration has issued guidelines for employers who are preparing to reopen their workplaces, encouraging employers to develop and implement policies dealing with social distancing and personal protective equipment (PPE); temperature checks; COVID-19 testing, isolation and contact tracing; sanitation; how to use and disinfect high traffic areas; and the need to still limit business travel.
The Equal Employment Opportunity Commission (EEOC) has issued a series of guidance memos for employers, including one that says it is permissible for employers to measure the temperatures and conduct tests to detect the presence of the virus in returning workers. At the same time, employers must remain aware that federal privacy protections are still in place.
“Failure to properly plan for the privacy issues of coming back to work can put employers in hot water with the federal agencies and the court system,” says Christina N. Rogers, an attorney with the law firm of Graydon Head & Ritchey. “Now more than ever, employers need to exercise some restraint and common sense before throwing privacy rights out the window and navigating these uncharted waters.”
She suggests a series of question for employers to ask themselves before implementing a new policy for bringing employees back into the workplace:
● How will this be implemented?
● Who will be in charge of this policy or procedure?
● How will we ensure that the individual employee’s privacy will be protected?
● What is the likelihood that other employees will find out personal health information of that employee?
● How will the private information of the employee gathered be recorded and stored?
● How will we ensure confidentiality?
If you plan to take the temperatures of employees, do so in a private area away from other employees, Rogers recommends. There should be a separate exit so that employees will not cross paths and other employees will be unaware of the outcome of that employee’s temperature check. If this is not possible, take social distancing to the extreme, she says. Make sure there is enough space between employees so that another employee would not be able to overhear the temperature check results.
Also consider what will eventually happen with the data you collect—if you are even collecting data. Procedures that are used to safeguard the confidentiality of employee medical information of any kind should be guaranteed.
Preparing the Right Way
Attorneys Lymari Martinez Cromwell and Davidson French of the law firm of Bass, Berry & Sims stress that accurate testing only reveals if the virus is currently present, and a negative test does not mean the employee will not acquire the virus later.
All tests that have received an authorized Emergency Use Authorization (EUA) from the FDA, including any authorizations for home collection of a specimen, can be found on the FDA’s Emergency Use Authorizations webpage.
The Occupational Safety and Health Administration (OSHA) is another federal agency that has continually updated how it expects employers to act during the time the Coronavirus pandemic has progressed, Cromwell and French note. In doing so, it followed guidelines established by Centers for Disease Control and Prevention (CDC) for returning employees, including those who were previously exposed to the disease. The CDC guidelines include:
● If an employee was present at the job site within 48 hours of testing positive, employers should follow the CDC’s cleaning and disinfecting guidelines. Cleaning staff should clean and disinfect all areas used by the ill person, especially frequently touched surfaces.
● If it has been more than seven days since the person who is sick visited or used the facility, additional cleaning and disinfection procedures are not necessary.
● For electronics—such as tablets, touchscreens, keyboards, remote controls and ATMs—consider using wipeable covers. If there are no manufacturer’s instructions for cleaning and disinfecting electronics, use alcohol-based wipes or sprays containing at least 70% alcohol and dry the surfaces thoroughly.
● Employers should develop policies for worker protection and provide training to all cleaning staff on-site before assigning cleaning tasks. This should include training in when to use PPE; what PPE is necessary; how to properly put it on, use it and take it off; and train them in how to dispose of PPE the right way.
● Ensure workers are trained on the hazards of the cleaning chemicals being used in the workplace per OSHA’s Hazard Communication Standards.
● Comply with OSHA’s standards on bloodborne pathogens, including proper disposal of regulated waste and PPE.
Cromwell and French recommend that employers also consider implementing a number of additional protective measures to protect everyone in the workplace, such as:
● Require employees to practice social distancing at work. This can include staying at least six feet apart, limiting the number of occupants in offices and/or elevators, requiring office doors to remain closed when occupied, closing lunch and break areas, and restricting occupancy and spacing.
● Staggered arrival and departure times and/or work hours.
● Closing certain stalls/urinals in the restroom to create adequate distance between individuals.
● Limit one person to a vehicle, if possible.
● Install high-efficiency filters and increase ventilation rates in the workplace.
● Designate one person to clock employees in and out of work, or to record their arrival and departure times if clocking in would otherwise require employees to be in close contact with each other or to touch the same equipment. Forbid the sharing of headsets, refrigerators, microwaves, computers, tools and other equipment.
● Prop open doors to reduce touching of handles.
● Install glass or plexiglass barriers where people have to meet to talk and exchange documents or materials, including at secretarial workstations and customer service desks.
Other Workplace Concerns
Among those who are advising employers to bring back employees gradually, using a step-by-step phased-in approach, are Megan Glowacki and Keith Spiller, attorneys with the law firm of Thompson Hine, who declare that “it is important for employers to have a plan in place that addresses a wide range of topics and that is tailored to the workforce and workspace.”
Depending on the nature of the business and its operations, an incremental return could involve assigning teams of employees to physically work in the office while others continue to work remotely, and then switch them around, for designated periods of time. Manufacturers may consider staggering shift times and meal and rest breaks while maintaining compliance with state law requirements.
When determining which employees should return first, base the decision on legitimate business needs and not on employees’ classifications protected under civil rights law, such as age, say Glowacki and Spiller.
Before any employee sets foot back into the workplace, audit whether the physical space allows (or encourages) employees to comply with social distancing guidelines. Spread out workstations where possible and designate six feet of distance between people where lines are likely to form, such as near entrances, timeclocks and in cafeterias.
Because the CDC recommends common areas be closed or the number of people gathering in those areas be kept down, Glowacki and Spiller reiterate that all or a portion of the tables or chairs in a cafeteria may need to be removed. Also, make sure to limit in-person meetings to a small number of attendees and only hold them as needed.
“To the extent possible, curtail visitor access to the workplace,” the attorneys advise. “Where in-person visitor access is business-critical, consider requiring a visitor self-screening questionnaire to identify potential risk of exposure.”
Make sure that an office space is sufficiently stocked with the necessary sanitization and PPE, including soap, hand sanitizer, disinfectant wipes and potentially masks. Schedule frequent and regular cleaning of high-traffic areas like shared equipment, timeclocks, kitchens and cafeterias, water coolers, doors, bathrooms and copy machines.
The direct impact of physical danger is not all that employers need to plan for. Glowacki and Spiller warn that they need to be prepared to respond when employees refuse (or are hesitant) to return to the physical workspace upon re-opening.
“If an employee has an underlying medical condition that makes them more susceptible to the virus or who claims mental health issues resulting from a return to work, employers should engage in the Americans with Disabilities Act (ADA) interactive process to determine if they must accommodate a longer period of teleworking,” they advise.
Employers also should pre-plan for how to handle an employee who does not have any underlying disability but is still fearful of becoming ill by working at your location. Employers will need to balance these requests for additional flexibility against the precedent it will set for other employees, they admit.
It is vital for employers to establish procedures for dealing with an employee who tests positive for COVID-19 after the business re-opens. “This should include ensuring the workplace is thoroughly cleaned and sanitized,” Glowacki and Spiller suggest. “Consider contracting with a vendor beforehand so that the vendor can immediately be called in to clean.”
They add that the plan should describe whether all or some employees must return to telecommuting for a specified time and require evaluating whether the incident qualifies as an OSHA recordable event.
The CDC also recommends developing and implementing policies and procedures for workforce “contact tracing,” which involves identifying who may have been exposed to employees with suspected or confirmed COVID-19 during the infectious period. As a result, other employees and third-parties (customers, vendors, contractors and others) may need to be notified that they have potentially been exposed to the virus.