Big picture considerations for employers as they re-open their workplaces

Written by Laura Salerno Owens
President and Shareholder of Markowitz Herbold PC

As employers reopen workplaces, there many considerations, ranging from minimizing legal liabilities to maximizing worker productivity. Below are four tips for employers as they plan for their business reopening.

Review and update employment policies. Before returning to work, employers should review their employment policies with respect to sick leave, family and medical leave, employee leaves of absences, teleworking, vacation, and paid time off to ensure both compliance with applicable law and practicability in the post-COVID-19 workplace.

1. Create a Pandemic Policy Resource. Employers may consider creating a COVID-19-specific addendum to their employee handbook for use during the pendency of the crisis. Policies to consider include requiring employees to report illness, workforce contact tracing, and special accommodations for vulnerable employees (even if not otherwise disabled).
   • Below is a sample remote work policy and remote work agreement.
   • The Chamber of Commerce resource can be useful as well.
2. Review Employee Leave Requests and Tracking Procedures. Employers should also ensure that their employee leave policies clearly state the process by which employees may request time off so that any grants or denials of such requests are made in accordance with applicable law and that any time off is tracked. Tracking time off is particularly important with respect to time off taken under the Families First Coronavirus Response Act (FFCRA), for which employers may seek refundable tax credits from the Internal Revenue Service.
3. Make sure employees know how to file complaints, report concerns, and request reasonable accommodations. Employers should consider choosing a specific individual to receive COVID-19- related inquiries and complaints, in addition to making sure the new policies contain clear reporting instructions.

Conduct a Risk Assessment. The Occupational Safety and Health Act (the “OSH Act”) requires employers to provide employees with a workplace free from “recognized hazards that are causing or likely to cause death or serious physical harm.” Employers should consider conducting a COVID-19- specific risk assessment of their physical work environments under OSHA’s Guidance on Preparing Workplaces for COVID-19. When conducting the risk assessment, employers should classify the exposure risk level of the various roles in the workplace in accordance with the OSHA Guidance and take appropriate steps to protect workers with medium, high, and very high exposure risk jobs.

1. Workplace Assessment. The initial assessment should focus on whether and to what extent there is the possibility of frequent or close contact with other people. This will vary greatly from business to business.
   • Can you limit?
   • Can you close?
   • Will you require personal protective equipment?
   • The risk analysis and its related mitigation strategies should also include a cost-benefit analysis. It is possible that prudent risk mitigation strategies make the costs of reopening the business at a point in time greater than the benefits.
2. Review your insurance policy. It’s likely that future interruptions to businesses will occur, so it’d be smart for an employer to be familiar with whether their policies expressly exclude coverage for losses due to a virus or pandemic.
3. Review your contracts. Business owners should likewise consider whether their written contracts adequately address the consequences of a pandemic like COVID-19. As businesses reopen, many will negotiate new contracts or look for reasons to terminate existing contracts or excuse a lack of performance. A review of existing and future contracts will help evaluate the level of protection they provide.

Decide whether you’ll conduct testing.

1. Establish clear and uniform standards. If an employer chooses to monitor employee body temperatures, it should clearly communicate to employees in writing the temperature check procedure and screening threshold and the consequences of failing a temperature check-in advance of implementing the policy. Employers should similarly be prepared to perform such checks and screening of vendors and other visitors to their workplaces.
2. Determine how you’re going to respond if an employee refuses to be tested. If an employee refuses to undergo a temperature check or other COVID-related test, the employer may bar the employee from the workplace. However, employers should ask about the reasons for the refusal in the event that there is a health-related or religious reason for the refusal or if more information or reassurances concerning confidentiality would be helpful.

How will you handle employee morale and fear, and mental health? Expect that for a wide variety of reasons, employees may request to continue teleworking even as their workplace reopens. An employer needs to consider the impacts on management, communication, and staffing as certain operations are on-site while other employees continue to telework.

1. Be Mindful of Employee Anxiety. Employers should also be mindful of the health, safety, and security issues that employees and employees’ family members may be experiencing, and consider exercising flexibility to accommodate these issues. To manage these types of intangible issues, employers may want to assess whether a work-from-home arrangement is feasible for a particular employee even after the workplace reopens and, if not, whether a leave of absence would be more appropriate. Of course, these may not be the only available options, and employers should consider exercising creativity in determining reasonable and appropriate solutions.
2. Employee Assistance Programs. Employers who offer an Employee Assistance Program should remind employees that this resource is available to them. And employers who haven’t historically offered an EAP may want to consider adding this to their employee benefits package, at least during these trying times.

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