Employers have many questions as they start to think about reopening their workplaces. Chief among them are what they can do to ensure the safety of their employees, as well as customers and other visitors. Another biggie is what liability they’re looking at if someone gets sick.But guidance from government bodies changes from day to day, making it difficult for companies to know what they’re expected to do.
“It puts employers in a really difficult position,” said Domenique Camacho Moran, a partner at Uniondale, New York-based Farrell Fritz who concentrates her practice on labor and employment law. “Every time they thought they had the answer, it changes.”
Guidelines from the CDC, OSHA and the New York State departments of labor and health must be monitored on a regular basis, said Christine Malafi, a senior partner at Campolo, Middleton & McCormick, which is based in Ronkonkoma, New York.
Generally speaking, employers are looking at social distancing, personal protective equipment, cleaning routines and ways to screen for illness, as well as policies for what to do when someone tests positive for COVID-19.
“Some of our clients are essential businesses, so they have put new processes in place already, which are becoming part of the culture,” Moran said. “Some things take time, like retrofitting space and ordering supplies. Everybody should be looking now at what they need to do so they will be prepared to have people back at work.”
Current guidance calls for employees to be six feet away from each other and to wear masks if they will be coming within six feet of others.
“Every workplace is unique, but generally speaking, employee workstations should not be within six feet of each other, even if the employees are wearing masks,” Malafi said.
“Companies may need to look at reconfiguring their office space,” said Jessica Baquet, a partner at Jaspan Schlesinger in Garden City, New York.
This is particularly true for office space with an open format.
“There may have to be empty cubicles separating other cubicles,” Baquet said.
One option is modified scheduling, Moran said.
“You may need to have an A week/B week or A day/B day and bring staff back in phases that way,” she said.
Baquet has observed that some companies and people who were recalcitrant about remote work are realizing now that it’s possible.
“I think remote work will become more broadly available, especially in cases where employees were able to show that they were very productive during this time,” she said.
For workplaces where employees interact directly with the public, companies are looking at ways to limit contact.
“You have seen plexi-glass between cash registers and customers,” Moran said. “We will see more of that wherever there is interaction between staff and the public.”
Further, “passing things from hand to hand should be avoided,” Baquet said. “With a credit card machine, customers should put their card in themselves rather than handing it to the clerk, and merchandise should be put on a tray rather than handed back and forth.”
Some of Baquet’s clients are essential businesses, and, where practical, they are already eliminating certain aspects of the job where people come in close contact with others.
“Every workplace needs to think about what PPE they need,” Moran said. “If you’re going to require masks, the employer needs to provide them, whether disposable or reusable. Companies should also be looking into hand sanitizer and things like Clorox wipes, gloves and paper goods.”
Companies also need to look at their cleaning protocol going forward and how to ensure that high-touch surfaces in particular will be regularly disinfected.
“Hand sanitizer should be available in common areas,” Baquet said. “And disposable cups and utensils rather than coffee mugs and utensils that have to get washed are a better choice.”
As workplaces will have to be cleaned more often, “employers might tell employees that no excess paper can be kept on their desks,” Malafi said. “Employers should have notices up reminding employees about washing hands and other policies, such as “Only X amount of people can be in the lunchroom at a time.”
Employers should institute a policy in which they ask employees daily to confirm whether or not they are asymptomatic.
“We are already seeing employers asking employees if they have a fever, a cough, or shortness of breath and if so they are sending them home,” Moran said. “It’s a good thing to do, anyway. When you get a run of the flu in the office, it takes out a bunch of people. The goal here is that this is not going to happen anymore.”
Daily questionnaires can be conducted via computer or on paper. Either way, they are medical records and must be handled confidentially, Moran said. Further, since the employer is asking the questions, it has to be prepared to act on the answers.
“It’s critical that someone is monitoring the information,” Moran said.
One of Moran’s clients pointed out that if someone comes into the office and fills out a computer questionnaire saying they have a fever, they’re already there and may have already infected people even if the company sends them home right away.
“Our goal with these screens is to create a new culture,” Moran said. “I’m hoping that what we are starting is individual responsibility. The employee who gets up in the morning and doesn’t feel well will say to himself, ‘Let’s think this through. I can’t certify that I’m not symptomatic today, so I can’t go to work.’ The goal is not only to catch the people who are sick; it’s to get the people who are sick to stay home by requiring that certification.”
The CDC allows employers to test for COVID-19. However there are obvious problems with this, including the fact that tests are not widely available, and they only certify that someone is negative at that moment.
Another option is to take employees’ temperatures daily. This, too, has problems, since not everyone with COVID-19 has a fever, so it could lead to a false sense of security. And companies who do this must carefully consider the protective gear needed for the person taking the temperatures, Moran said.
“And once you go down that road and test people for a fever, you must make sure you do not allow anyone into work that has a fever, because you are taking on added responsibility,” Moran said.
If someone tests positive
There are CDC and OSHA guidelines about what to do if someone who was in the workplace – whether an employee or visitor – is found to be positive, Baquet said.
“OSHA has different guidelines for different industries,” she said.
In general, the workplace will have to be disinfected and employees will have to be informed.
“Give employees as much information as you can about the places in the building where the infected person went without revealing the person’s identity,” Baquet said.
If someone’s afraid to come to work
When employers open their doors again, they may find that some of their employees are afraid to come back, particularly those with pre-existing conditions that make them more vulnerable to a poor outcome from COVID-19.
Generally speaking, there is no requirement to give paid leave to people simply because they are afraid. However, Baquet said, the Families First Coronavirus Response Act requires most employers with fewer than 500 employees to provide paid sick leave to employees in certain circumstances relating to COVID-19.
“One of the reasons for paid leave is that the employee is unable to work or work remotely because she has been advised by a physician to self-quarantine or self-isolate for a reason relating to COVID-19,” Baquet said. “According to the Final Rule issued by the U.S. Department of Labor, one such reason is that the employee is ‘particularly vulnerable to COVID-19.’”
The maximum amount of paid leave is 80 hours in the case of full-time employees.
Employers are concerned about liability should an employee come down with the virus.
“Under OSHA, there is a general duties clause that requires that a workplace be free of hazards likely to cause death or serious injury,” Baquet said. “If you are taking no safety precautions and someone dies, there could be consequences for the employer.”
Generally speaking, if someone gets sick at work, it’s covered under worker’s compensation.
“As long as employers act in good faith in taking precautions based on known facts and guidelines, they should not have any additional liability,” Malafi said.
If an employer tasks someone to monitor regulations and guidance and update the company’s leaders on any changes, “that will go a long way if the employer has to defend its actions before a government agency or court,” Baquet said.
A case filed in Texas accused an employer of wrongful death after an employee came down with the virus and died. “There were arguments surrounding the issue of whether the employer knowingly told sick people to come to work,” Moran said. “Those facts are problematic. That’s why it’s important that employers make it clear to everyone that if they’re sick, they can’t come to work; they can use PTO or work remotely.”
With community spread, people can pick up COVID-19 just about anywhere. “You can catch it in a parking lot or the grocery store,” Moran said. “Every employer can do its best to maximize safety, but there’s never a guarantee.”