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RETURN TO WORK ASSESSMENT & PLANNING

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RETURN TO WORK ASSESSMENT & PLANNING

In anxious anticipation of reopening/resuming business, and the eventual return to work there are many employment law and personnel related issues that should be considered. The assessment should not only focus on how to resume business operations, but also on what will re-hiring or re-staffing look like and how can employers ensure a safe workplace, along with a myriad of other issues in these uncertain times.

The CDC has issued considerable guidance to help employers understand the nature of the virus better and to address the concerns related to providing a safe and healthy work environment for your employees.

The CDC has just issued their “Roadmap” to reopening, which provides general information along with some industry specific guidance (e.g. auto dealerships, logistics and warehousing, manufacturing, and others) The Guidance can be found here: https://covid19.ca.gov/roadmap/#guidance

Additional CDC guidance on reopening issues can be found here:

https://www.cdc.gov/coronavirus/2019-ncov/community/reopen-guidance.html

The CDC has stated that employers, when reopening, should focus on the following:

  • Promoting healthy hygiene practices
  • Intensifying cleaning and disinfecting procedures (e.g., small static groups, no large events)
  • Canceling non-essential travel, and encouraging alternative commuting and telework
  • Spacing out seating (more than 6 feet) and staggering gathering times
  • Restricting use of any shared items and spaces
  • Training all staff in above safety-actions

Some additional strategies that employers should consider include the following:

  • Appoint a workplace coordinator for coronavirus issues: Designate someone in management as the “go to” person so that employees know that there is someone they can go to with issues, concerns, reports of illness, etc. This person would be responsible to keep up-to-date on CDC, OSHA and other state, federal and local guidelines regarding COVID-19 issues and should be responsible for establishing communication with state and local health authorities if an exposure in the workplace occurs.
  • Implement basic infection prevention measures: This includes but is not limited to frequent and thorough hand washing, respiratory etiquette, adequate tissues and trash receptacles for workers, customers and the public. If necessary, retain an industrial cleaning company to do a deep clean of the facility on a regular basis; hire a person to do nothing but clean throughout the day to ensure the surfaces in and around the workplace have been disinfected.
  • Establishing routine, daily employee health checks & require sick employees to stay home: Employees should not return to work until the criteria to discontinue home isolation are met, in consultation with healthcare providers and state and local health departments. Employees who are well but who have a sick family member at home with coronavirus should notify their supervisor and follow CDC recommended precautions.
    • Do not let anyone that has symptoms return to work until cleared by a medical provider (which may continue to be an issue since it is difficult to get appointments – but employers can accept documents from a tele-medical provider).
  • Identify where and how employees could be exposed to COVID-19 at work: OSHA offers guidance for employers, including steps to take for jobs categorized by exposure risk. OSHA recommends creating an infectious disease preparedness and response plan that considers and addresses the level(s) or risks associated with various worksites and job tasks workers perform at those sites. The Guidance can be found here: https://www.osha.gov/Publications/OSHA3990.pdf
  • Develop and implement policies and procedures for workforce contact tracing following a positive COVID-19 test in the workplace: Employers should continue to ask infected employees to identify all individuals who worked in close proximity (within six feet) for a prolonged period of time (10 minutes or more to 30 minutes or more depending upon particular circumstances, such as how close the employees worked and whether they shared tools or other items) with them during the 48-hour period before the onset of symptoms.
  • Create screening measures to identify sick employees as soon as possible: This can include temperature checks and symptom inquiries. Employers should limit questions to the CDC currently recognized coronavirus symptoms: Cough, Shortness of breath or difficulty breathing, Fever, Chills, Repeated shaking with chills, Muscle pain, Headache, Sore throat or Loss of taste or smell during the last 14 day period of time.
  • Minimize face-to-face contact: This may require re-arranging the worksite to implement social distancing at work. Consider spacing out desks, closing or limiting access to the lunch/break room, set up space outside for meals and breaks.
  • Remove sick employees from the workplace: Once an employee is determined to be infected they must immediately leave the workplace. Then, Employers should inform fellow employees of their possible exposure to the coronavirus without violating the confidentiality required by the ADA. Employers may take the temperature of their employees; however, this information is considered “medical information” and the Employer must undertake appropriate and reasonable measures to ensure the confidentiality of such information. It is also important to know that there are other symptoms of COVID-19 so an elevated temperature is not a fool-proof measure of the health of your employees.
  • Update existing travel policies to reflect CDC Traveler’s Health Notices: Develop policies around how employees should travel safely. Consider whether travel is necessary and use teleconferencing whenever possible. The CDC guidance can be found here: https://wwwnc.cdc.gov/travel
  • Change Meeting Protocol: Take care when attending meetings and gatherings. When in-person meetings must be held, conduct them in open, well-ventilated spaces while maintaining social distancing.
  • Personnel Considerations: Changes to some of the personnel practices may be required as work is resumed and employees are offered reinstatement. A few issues to consider are:
    • Employee’s Refusal to Return to Work: Some employees may continue to be fearful or apprehensive of contracting COVID-19 and refuse to return to work. Such refusal could be considered a complaint regarding workplace safety under OSHA. Plan your response accordingly for these situations.
    • Refusal to Reinstate An Employee Who Had COVID-19:  Employers should not refuse to reinstate or rehire an employee who was infected with COVID-19 as such action could be considered disability discrimination under State and Federal laws prohibiting discrimination based on disabilities.  Any adverse action against an employee who had COVID-19 may expose the employer to potential liability. Refer to the Department of Fair Employment and Housing’s (“DFEH”) FAQs for further guidance on these issues.
  • Documents to Provide Employees Upon Return to Work:  The Families First Coronavirus Response Act Notice must be displayed in the workplace in a conspicuous place. The Los Angeles County Department of Public Health’s Notice to Consumers should also be displayed in the workplace. A copy can be found here:

http://publichealth.lacounty.gov/media/Coronavirus/NoticeToCustomers.pdf

A Checklist for Return to Work Issues can be accessed here.

DISCLAIMER

Please note, the above is not an exhaustive list of all the issues to address when planning for reopening and re-hiring. As this is a new and evolving issue, the laws continually change, and each situation should be evaluated on a case-by-case basis.

As the guidance issued by the state and federal agencies is regularly changing, as is the medical information known about COVID-19, this memo is provided solely as a reference tool to be used for informational purposes and should not be construed or interpreted as providing legal advice related to any specific case or cases.

This Newsletter is intended as a brief summary of employment law. While every effort has been made to ensure the accuracy of the information contained herein, it is not intended to serve as “legal advice,” or to establish an attorney-client relationship. If additional information is needed on any of the topics contained herein, please contact our office. All rights reserved. ©2020.