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Guidance to All Employers on Preparing to Reopen Business Operations

WEINER LAWInsightsBusiness Litigation DefenseGuidance to All Employers on Preparing to Reopen Business Operations

Reopening Economy

As you consider reopening your business operations, there are numerous issues related to COVID-19 for employers to take into account. Under the federal Guidelines for Opening Up America Again, employers should develop and implement appropriate policies, in accordance with Federal, State, and local regulations and guidance, and informed by industry best practices, regarding social distancing and protective equipment, medical screenings, sanitation, use and disinfection of common and high-traffic areas, and business travel. Below, we have listed some of the key considerations to take into account when drafting and implementing these polices. However, there is no “one size fits all” when it comes to a COVID-19 response plan, and any plan should be narrowly tailored to the specific needs of your operations. Our office can assist in preparing a detailed response plan to meet your specific operational needs while ensuring compliance with all applicable federal, state, and local laws.

1. Screening Employees Before Returning to the Workplace and the Americans with Disabilities Act

The Americans with Disability Act (“ADA”) prohibits employers from requiring employees to undergo a medical examination unless such examination is shown to be job-related and consistent with business necessity. Applying this standard to the current public health crisis, the EEOC has expressly advised that employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. Therefore, an employer may choose to administer COVID-19 testing or otherwise require certain medical examinations before allowing employees to return to the workplace. However, prior to implementing any health screening measures, please contact our office to ensure your contemplated screening measures do not run afoul of any federal or state laws, such as the ADA.

2. The Occupational Health and Safety Act (“OSHA”)

OSHA requires all covered employers to ensure their workplaces are free from recognized hazards that are causing or are likely to cause death or serious physical harm. Although there are no specific rules or regulations related to COVID-19, OSHA has advised that an employer’s obligations extend to COVID-19 hazards. Therefore, your policies for reopening business operations should consider and address the risks associated with your worksite(s) and the duties workers perform, steps that can be taken to reduce the risk of exposure to COVID-19, and policies about workplace flexibilities to address concerns about COVID-19.

3. Employee Privacy Concerns

The EEOC advises that an employer may disclose the name of an employee to a public health agency when it learns that the employee has tested positive for COVID-19. However, any disclosure should be limited to the minimum amount of information necessary. Additionally, any disclosures related to an employee’s medical condition or symptoms must comply with any applicable federal and/or state law, such as HIPPA, as well as your internal policies, procedures, and contractual obligations.

4. Employee Leave

With limited exceptions, private sector employers with less than 500 employers and covered public entities must provide leave in accordance with the Families First Coronavirus Response Act. In general, employees are eligible for eighty (80) hours of paid sick leave if they are unable to work because they are subject to a government quarantine or isolation order, have been advised by a health care provider to self-quarantine, are experiencing COVID-19 symptoms and seeking a medical diagnosis, and/or are caring for someone with one of the aforementioned conditions. An additional ten weeks of paid leave is available to employees who have been employed for at least 30 calendar days and are unable to work due to a bona-fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19. Additionally, many states have expanded their sick leave laws to further protect workers that need to take leave for reasons related to COVID-19. In the event an employee requires leave for COVID-19 related reasons and you are unsure as to his or rights under federal and/or state law, please contact our office for additional guidance.

5. Disciplinary Action

Once it is deemed safe for all employees to return to work, employees may still be reluctant to return to the workplace or otherwise undergo an employer-mandated screening prior to returning to work. If an employee refuses to return to work or undergo a mandatory health screening, disciplinary action may be taken. When imposing disciplinary action, employers may not act in a discriminatory manner, and should strictly comply with any applicable laws or regulations, all existing disciplinary policies and procedures, and any contractual agreements.