Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Over a roughly two-month period, COVID-19 has completely upended work as we know it. Businesses across the globe have struggled to function with limited staff and resources, restructured their workforces, and implemented new protocols to keep their employees safe. In this unsettled environment, employers continue to contend with a steady stream of stay-at-home orders, travel restrictions, safety requirements, and leave mandates, among other significant workplace changes.
Now governments are starting to unveil their return-to-work plans. When employees finally reenter the workplace and operations resume, it will hardly be business as usual. Employers will need to make difficult decisions in the weeks and months ahead. How do employers go about recalling employees who have been working from home or on furlough? Will compensation and benefits need to be reassessed? Will the physical workplace look the same? What accommodations need to be made? And how can employers plan for a future disease outbreak or other calamitous event? What will employment’s “next normal” look like?
To help employers address these and other issues stemming from the current pandemic, Littler is offering a series of Insights on returning to work. This first installment provides an overview some of the key safety and health considerations employers should assess as they start to bring employees back into the workplace.
From a safety and health perspective, how do employers prepare their workplaces before returning employees to work?
A host of legal and public health issues must be considered to ensure the safety and health of employees as they return to work. In addition to federal guidance and recommendations, employers will need to take into account the ever-evolving orders, recommendations, and guidance from state and local authorities. Many employers will be encouraged (if not required) to continue with teleworking options as long as feasible. Moreover, different sectors of the economy may have drastically different requirements and guidelines to follow upon their physical return to work, particularly for public-facing businesses and the healthcare sector. There is no “one-size-fits-all” approach to returning to work and that makes the process all the more challenging for employers.
During the COVID-19 outbreak, many workplaces were closed or had only a small group of employees present on a day-to-day basis. Employees may have some concerns in reentering the worksite and, specifically, with respect to what employers are doing to ensure their safety immediately upon reopening and thereafter. Employers should consult state and local ordinances or regulations that might be applicable to reopening. In general, employers should consider the following in preparing to safely reopen their worksites: cleaning the worksite and implementing additional engineering and administrative controls.
Before reopening, employers should review U.S. Centers for Disease Control and Prevention (CDC) guidance on cleaning and disinfecting their facilities. The CDC has also published specific cleaning guidance to assist employers, available here.
The CDC has indicated that the risk of exposure to cleaning staff is inherently low. If, however, the employer assigns its own employees to perform the cleaning and disinfecting of their workplaces, the employer must ensure the following:
- The employees performing cleaning tasks must have access to and wear disposable gloves and gowns for all tasks in the cleaning process.
- Additional Personal Protective Equipment (PPE) should be provided if required based on the cleaning/disinfectant products being used and whether there is a risk of splash.
- Such PPE and other protective measures must be compatible with the safety data sheets and manufacturer(s)’ guidance on each of the cleaning/disinfectant products being used.
- Employees performing cleaning tasks must be properly trained on how to safely clean and remove any disposable gloves and gowns or additional PPE to avoid potential exposure.
- Employees performing cleaning tasks should also clean their hands for 20 seconds with soap and water after doffing gloves. If soap and water are not available and hands are not visibly dirty, an alcohol-based hand sanitizer that contains at least 60% alcohol may be used.
Employers also have the options of conducting a deep cleaning, such as defogging, to clean and disinfect their workplaces or contracting with professional cleaners trained to clean and disinfect potentially contaminated workplaces. Additionally, after employees return to the workplace, it is recommended that employers implement routine cleaning protocols that include:
- Scheduled cleanings of any equipment shared by multiple employees such as faucets, door handles, copiers, monitors, keyboards, control panels, and similar items; and
- Scheduled (or more frequent) cleanings of any common areas that are heavily trafficked by employees, including, for example, break rooms, cafeterias, kitchen pantry areas, water sources, and restroom facilities.
These measures should be clearly communicated to employees so that everyone is informed of the measures being taken on an ongoing basis to clean and disinfect the workplace.
Engineering and Administrative Controls
Before reopening, employers should consider whether to implement additional engineering or administrative controls in the workplace. The CDC and the Occupational Safety and Health Administration (OSHA) have provided some guidance on engineering and administrative controls in the workplace that may help in combating the spread of COVID-19. Such controls include high-efficiency air filters or other devices for increased circulation, filtration, or ventilation. Additionally, employers may want to consider increasing the percentage of outdoor air that circulates into the workplace ventilation systems. Employers should implement controls that are practical, feasible, and effective in their specific workplaces.
One common administrative control employers should consider is enhanced social distancing. This step may also be required by state and local ordinances. Some social distancing measures that employers may want to consider include:
- Split shifts;
- Placed markers indicating proper social distancing in any areas where employees may line up or congregate;
- Staggered meal and rest breaks;
- Designated meal and rest break areas;
- Limiting the number of employees permitted in meetings/confined spaces;
- Putting up shields or barriers to prevent employees from being exposed to someone else’s respiratory droplets;
- Alternating work stations;
- Removing seats in communal areas to provide additional personal space; and
- Reorienting work points to avoid employees directly facing each other.
Employers should try to implement what is feasible and practical for each specific workplace. Part of this determination depends on whether there are industry-specific considerations that must be accounted for, including whether federal, state, or local authorities have issued requirements or guidance governing any such industries.
What steps can employers follow regarding face coverings in the workplace?
Employers may have workplaces in states or cities that have implemented laws or guidance relating to face coverings. Some of these jurisdictions may currently have mandatory face covering requirements and many of these laws may still be in place when employees return to the workplace. As such, employers may need to develop procedures and protocols regarding the distribution and donning of face coverings. OSHA has advised that face coverings are not considered PPE subject to formal workplace health and safety standards.
Policies implementing face covering requirements may mandate that employees use face coverings provided by the employer and/or allow employees to purchase or make their own face coverings. In addition, employers implementing face coverings should also consider including protocols detailing how to properly wear, safely don and doff, and maintain these face coverings. Some state and local requirements may dictate these practices as well. The provision of face masks will likely also touch on potential wage and hour and reasonable accommodation issues (as well as other legal issues), which must also be considered.
How do employers prepare for an exposure in the workplace?
Finally, it is likely that once the worksite reopens, employers will again be faced with employees who develop symptoms of COVID-19, test positive for COVID-19, be clinically diagnosed with COVID-19 (“presumptive positive”), and/or have been in close contact with a presumed positive or confirmed COVID-19 individual. Employers should “think ahead” and develop a thorough exposure control plan, which identifies what steps to take for different exposure scenarios including: (1) whether an employee needs to self-quarantine; (2) whether the employer needs to conduct a contact tracing assessment to determine if others should be isolated or quarantined; and (3) how to implement appropriate cleaning protocols.
It is essential to have an exposure control plan in place before a potential exposure occurs. Additionally, employers should prepare for and have procedures in place on how and when to record and/or report a confirmed case of COVID-19 in the workplace pursuant to OSHA standards.
Even as the world slowly reopens in light of the COVID-19 pandemic, the workplace will be fundamentally changed for the foreseeable future. Employers must start preparing now for the many challenges reopening will entail. Employers with questions on how to appropriately respond to these issues and a returning workforce are advised to consult their Littler attorney for more information.