Back to Work: A Step-by-Step Guide to Reopening the Workplace During a Global Pandemic

150 150 Karr Tuttle Campbell

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On May 1, 2020, Governor Jay Inslee announced that the stay-at-home order will be extended through May 31, 2020. With this announcement, Governor Inslee revealed a phased approach for reopening recreational, social, and business activities in Washington State. Governor Inslee also announced that  guidance will be released soon to allow for retail curbside pickup, automobile sales, car washes, landscaping and house cleaning services, and drive-in spiritual services with one household per vehicle. As businesses begin to re-open, it is crucial for employers to prepare a return-to-work program for
employees, to avoid the spread of COVID-19. Below is a step-by-step guide for reopening your business during the COVID-19 global pandemic.

Step 1: Identify Your Phase and Target Reopen Date

Phase I of reopening in Washington began on May 5, 2020. Although the Office of the Governor has not released specific dates for the subsequent phases, Washington will stay in each phase for a minimum of three weeks. Therefore, the following chart illustrates the earliest dates on which businesses may open. Employers should identify their phase and monitor the Office of the Governor for additional guidance on dates for which they can reopen.

Summary of Phases for Business/Employers

Phase 1 (May 5, 2020):

  • Essential businesses open
  • Existing construction that meets agreed upon criteria
  • Landscaping
  • Retail (curb-side pick-up orders only)
  • Car washes
  • Pet walkers

Phase 2 (no earlier than May 26, 2020):

  • Remaining manufacturing
  • Additional construction phases
  • In-home/domestic services (nannies, housecleaning, etc.)
  • Retail (in-store purchases allowed with restrictions)
  • Real estate
  • Professional services/office-based businesses (telework remains strongly encouraged)
  • Hair and nail salons/barbers
  • Pet grooming
  • Restaurants <50% capacity table size no larger than 5

Phase 3 (no earlier than June 16, 2020):

  • Restaurants/taverns <75% capacity/table size no larger than 10
  • Bar areas in restaurant/taverns at <25% capacity
  • Movie theaters at <50% capacity
  • Customer-facing government services (telework remains  strongly encouraged)
  • Libraries
  • Museums
  • All other business activities not listed yet except for nightclubs and events with greater than 50 people

Phase 4 (no earlier than July 7, 2020):

  • Nightclubs
  • Concert venues
  • Large sporting events
  • Resume unrestricted staffing of worksites, but continue to practice physical distancing and good hygiene
  • With these dates in mind, employers should be sure they comply with the minimum workplace requirements for reopening.

Step 2: Evaluate Your Workplace Needs and Constraints

Employers will need to evaluate their own workplace needs and constraints when creating and implementing a return-to-work plan. It is important for employers to monitor and adapt to guidance published by federal, state, and local agencies.  However, the Office of the Governor has already identified the following basic requirements that employers need to adhere to in all phases:

  • Maintain the six-foot physical distancing requirements for employees and patrons. Adopt other prevention measures such as barriers to block sneezes and cough when physical distancing is not possible for a particular job task.
  • Provide services while limiting close interactions with patrons.
  • Provide adequate sanitation and personal hygiene for workers, vendors and patrons. Ensure employees have access to hand washing facilities so they can wash their hands frequently with soap and running water.
  • Ensure frequent cleaning and disinfection of the business, particularly of high-touch surfaces.
  • Identify personal protective equipment (PPE) and cloth facial coverings in accordance with L&I requirements on facial coverings and industry specific COVID-19 standards. Provide the necessary PPE and supplies to employees.
  • Identify strategies for addressing ill employees, which should include requiring COVID-19 positive employees to stay at home while infectious, and potentially restricting employees who were directly exposed to the COVID-19 positive employee. Follow CDC cleaning guidelines to deep clean after reports of an employee with suspected or confirmed COVID-19 illness. This may involve the closure of the business until the location can be properly disinfected.
  • Educate employees about COVID-19 in a language they best understand. The education should include the signs, symptoms and risk factors associated with COVID-19 and how to prevent its spread.
  • On a case-by-case basis, as directed by federal, state and local public health and workplace safety officials, implement other practices appropriate for specific types of businesses, such as screening of employees for illness and exposures upon work entry, requiring non-cash transactions, etc.
  • Follow requirements in Governor Inslee’s Proclamation 20-46 High-Risk Employees– Workers’ Rights.
  • Keep a safe and healthy facility in accordance with state and federal law, and comply with COVID-19 worksite-specific safety practices, as outlined in Governor Inslee’s “Stay Home, Stay Healthy” Proclamation 20-25, and in accordance with the Washington State Department of Labor & Industries General Coronavirus Prevention Under Stay Home, Stay Healthy Order and the Washington State Department of Health Workplace and Employer Resources & Recommendations.

Challenge Seattle and the Washington Roundtable have developed a business checklist which is a useful guide for businesses as they prepare for a Safe Start.

Step 3: Create a Return-to-Work Plan

Although separate industry-specific guidance has been issued for the construction and healthcare industries (and additional guidance may be published in the future), it is important for employers to begin establishing a return-to-work plan to implement when their workplace is reopened. Below is a list of five areas that a return-to-work plan should address, along with a checklist of potential measures employers should consider implementing in reopening the workplace.

  • Educate workers, volunteers, and visitors about COVID-19 and how to prevent virus spread
    • Post posters/information from the local health department, state Department of Health, Center for Disease Control and Prevention, and other authorities.
    • Inform workers about the steps being taken in the workplace to establish social distancing, increased handwashing, and to prevent the spread of the
      virus.
  • Enforce social distancing
    • Ensure occupied workstations are separated by 6 feet or have physical barriers when possible.
    • Allow only infrequent intermittent passing within 6 feet between employees without wearing respiratory protection.
    • Ensure materials, produce, or work items are transported between workers by mechanical means or by using staging points.
    • Stagger arrival times to avoid congestion.
    • Stagger breaks and usage of common areas.
    • Implement no contact (or minimal contact) payment/pickup.
    • Conduct virtual meetings even when at the workplace.
    • Consider whether continued telework option should be made  available to employees where viable.
      • *Note: Employees may be entitled to telework as a reasonable accommodation under the ADA if they are members of the “high risk” population.
  • Establish a sanitization protocol
    • Implement a cleaning schedule to maintain general  Housekeeping to prevent build-up of dirt and clutter.
    • Remove buildups of dirt and other materials on surfaces and disinfect high touch surfaces with bleach solutions or an EPA approved disinfectant. (See the list of approved disinfectants at https://www.epa.gov/pesticideregistration/list-n-disinfectants-use-against-sars-cov-2).
    • Cover surfaces that are commonly touched with the hands but difficult to clean (fabric, rough surfaces, and so forth) to make sure the environment is hygienic.
    • Provide cleaning supplies to workers to do spot cleaning when necessary.
    • Regularly clean surfaces that are frequently touched to maintain a visibly clean state (no obvious soiling, smearing, or streaks).
      • For surfaces frequently touched by multiple people, this can be on a frequent schedule, or between contact.
      • For surfaces touched by a single person, this needs to be done periodically, at least once per shift or when unclean, as a minimum.
    • Implement secondary handwashing or sanitizing stations with either hand sanitizer, or wipes/towelettes.
    • Allow workers to wash or sanitize their hands after touching any surface/tool suspected of being contaminated, before and after eating and using the
      restroom, and before touching their face.
    • Employers of transient outdoor and delivery workers and non-fixed worksites where there are no exceptions being granted should make portable wash
      stations readily available.
  • Provide personal protective equipment (PPE) for high risk employees
    • Public-facing employees that are required to be within physical distancing limits of 6 ft. for extended periods of time should be provided appropriate personal protective equipment (i.e. masks and gloves, when appropriate).
  • Implement procedures for sick employees, volunteers, and visitors
    • Ensure a system for preventing sick employees, visitors, and customers from entering the workplace.
    • Post visible entry-point signage for workers, volunteers, and visitors that includes notice of proper hygiene & sanitization, physical distancing requirements, and a prohibition on entry for those
      experiencing COVID-19 symptoms.
    • Ask workers to self-certify that they have experienced no COVID-19 symptoms since their last day at the workplace.
    • Implement temperature checks and screens when appropriate (note: some people with influenza, including COVID-19, do not have a fever).
  • Establish a process for deep cleaning after any report of a suspected or confirmed case of COVID-19 in the workplace.
    • Thoroughly sanitize all areas where a contaminated worker worked or would have stayed more than 10 minutes.
    • Do not allow other employees, visitors, or volunteers into these areas until the cleaning is complete.
  • Establish a system for tracking and reporting visitors and employees, when possible, for reporting purposes.
    • Upon receipt of a confirmed case of COVID-19, employers should immediately notify state and local health officials so timely information and accurate information can guide appropriate responses.
    • Employers must maintain information about employee illness as a confidential medical record in compliance with HIPPA and the ADA.

In addition to the above, Employers should continue to monitor and comply with any industry-specific guidance issued as your Phase is announced. Additional guidance prepared on behalf of Change Seattle and Washington Round table and cited by the Office of the Governor is a great starting point for  businesses preparing to re-open can be found here.

Step 4: Avoid Common Pitfalls (Miscellaneous Return-to Work FAQs)

Question: How do I decide which employees to bring back first?

Answer: Employers should first identify job roles that are essential to business and/or cannot be conducted via telecommuting. After identifying specific roles that should be reinstated, employers should implement a non-discriminatory process for selecting which employees are returned to work. Implementing clear merit and/or seniority-based processes for determining when employees will return to work will go a long way in avoiding claims of discriminatory treatment.

Question: I provided an offer to return to work to an employee who is refusing to return. What should I do?[1]

Answer: Individuals generally do not have the option to choose between receiving unemployment benefits or an offer to return to suitable work from their employer. Individuals must have a good cause reason not to accept suitable work in order to continue receiving unemployment benefits or Pandemic Unemployment Assistance under the federal CARES Act.

Good cause reasons an employee may refuse work and continue to collect unemployment include:

  • Being at higher risk for severe COVID-19 related illness as defined by the U.S. Centers for Disease Control and Prevention
  • Living in a household with a person at high risk
  • Providing direct care for a high-risk person
  • Being asked to work at a worksite that does not follow guidelines published by the U.S. Department of Labor, the Washington State Department of Labor and Industries, or Washington Department of Health without telework as an option.

Also, if an employer has substantially changed the job the employee is being asked to return to, such as a significant pay cut or moved the job location a significant distance away, the employee may refuse that work and continue to collect benefits.

When an employee files a new or reopened unemployment benefit claim, the employer will be notified and can dispute the employee’s claim to have been laid off through no fault of
their own. Employers can appeal a decision by the Employment Security Department to provide unemployment benefits to a worker.

Question: Do I have to return employee who was out of work due to high risk of contracting severe COVID-19 infection to the same job same pay?

Answer: Yes. Pursuant to Governor’s Proclamation 20-46, employers are prohibited from taking any adverse employment action against employees that are out of work due to their
status as a “high-risk” employee as described by CDC guidance.

Question: Can I refuse to return a high-risk employee to work out of concern for the employee’s own safety?

Answer: Generally, no, unless the employer can establish a direct threat to the employee’s health that cannot be eliminated or reduced by reasonable accommodation. Establishing a “direct threat” under the ADA is a fact-intensive inquiry that must be addressed on an individualized basis and cannot solely be based on the employee’s condition being listed as “high risk” under the CDC’s guidance.

Even if an employer determines that an employee’s disability poses a direct threat to his own health, the employer still cannot exclude the employee from the workplace – or take any other adverse action – unless there is no way to provide a reasonable
accommodation (absent undue hardship). The ADA regulations require an employer to consider whether there are reasonable accommodations that would eliminate or reduce the risk so that it would be safe for the employee to return to the workplace while still permitting performance of essential functions. This should involve an interactive process with the employee. If there are not accommodations that permit this, then an employer
must consider accommodations such as telework, leave, or reassignment (perhaps to a different job in a place where it may be safer for the employee to work or that permits
telework).

An employer may only bar an employee from the workplace if, after going through all these steps, the facts support the conclusion that the employee poses a significant risk of substantial harm to himself that cannot be reduced or  eliminated by reasonable accommodation.

Question: Do I have to pay for employee parking if they are concerned about the health hazards of public transportation?

Answer: No. However, a request of this nature coming from a high-risk employee should be treated as a request for a reasonable accommodation. An employer should consider options such as telework, alternative work locations, reassignment, or other accommodations that would ensure social distancing.

Question: Do I have to grant intermittent leave under the FFCRA to an employee who must come into the workplace to perform their job (e.g. no telework opportunity)?

Answer: Not necessarily. Intermittent leave cannot be taken if it is because the employee:

  • Is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
  • Has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  • Is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  • Is caring for an individual who either is subject to a quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self quarantine due to concerns related to COVID-19; or
  • Is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.

Unless the employee is teleworking, once an employee begins taking paid sick leave for one or more of these qualifying reasons, the employee must continue to take paid sick leave each day until the employee either (1) uses the full amount of paid sick leave or (2) no longer has a qualifying reason for taking paid sick leave. This limit is imposed because if employees are sick or possibly sick with COVID-19, or are caring for an individual who is sick or possibly sick with COVID-19, the intent of FFCRA is to provide such paid sick leave as necessary to keep employees from spreading the virus to others. Absent the circumstances specifically identified above, the general rules regarding intermittent leave under the FMLA still apply.

Question: Can I force employees to wear mask/gloves in the workplace or discipline them for not wearing?

Answer: Yes. Employers can require employees to wear personal protective equipment (PPE) in the workplace. According to current OSHA guidance, the recommendations on
implementing additional PPE vary based on exposure risk.

  • Low Exposure Risk: Low exposure risk work environments are those that do not require contact with people known to be, or suspected of being, infected with COVID-19 nor frequent close contact with (i.e., within 6 feet of) the general public. Workers in this category have minimal occupational contact with the public and other coworkers. Additional PPE is not currently recommended for low exposure risk environments. Workers should continue to use the PPE, if any, that they would
    ordinarily use for other job tasks.
  • Medium Exposure Risk: Medium risk work environments are those that require frequent and/or close contact with (i.e., within 6 feet of) people who may be infected with COVID-19, but who are not known or suspected COVID-19 patients (e.g., schools, high-population-density-work environments, high-volume retail settings). Additional PPE (such as face masks and gloves) is recommended for medium exposure risk environments. However, employers are not required to equip employees with respirators.
  • High Exposure Risk/Very High Exposure Risk: High and very high exposure work environments jobs that include high potential for exposure to known or suspected sources of COVID-19. These jobs are generally found in the healthcare industry and involve treating those with COVID-19. Additional PPE (including respirators) is required for high and very high exposure risk.

Additional information on exposure risk and OSHA-recommended practices can be found here.

Question: Can we require patrons to wear a mask in our establishment?

Answer: Yes. Employers may set the terms and conditions for entry onto their premises.

Question: What is the best practice for determining if our employees are healthy?

Answer: The only sure-fire way to determine whether an employee is healthy is to have them tested and cleared by a medical professional. As a best practice, employers should
ask all employees to self-assess and certify that they have not experienced any COVID-19 symptoms in the last fourteen days. Examples of common COVID-19 symptoms are:

  • Cough
  • Shortness of breath or difficulty breathing
  • Fever
  • Chills
  • Muscle pain
  • Sore throat
  • New loss of taste or sense of smell

Additional information on COVID-19 symptoms can be found at https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/symptoms.html

Although employers may implement temperature readings as an additional measure, employers should be aware that not all people infected with COVID-19 present with a fever.

Question: May an ADA-covered employer require employees who have been away from the workplace during the COVID-19 pandemic to provide a doctor’s note certifying fitness to return to work?[2]

Answer: Yes. Such inquiries are permitted under the ADA either because they would not be disability-related or, due to the severity of the COVID-19 pandemic, employers are justified under the ADA standards for disability-related inquiries of employees.

As a practical matter, however, doctors and other health care professionals may be too busy during and immediately after the COVID-19 outbreak to provide fitness-for-duty documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the COVID-19 virus.

Related Resources

Safe Start Washington, A Phased Approach to Recovery (available at https://www.governor.wa.gov/sites/default/files/SafeStartWA_4May20_1pm.pdf)

Washington’s Phase 1 Construction Restart COVID-19 Job Site Requirements (available at https://www.governor.wa.gov/sites/default/files/Phase%201%20Construction%20COVID19%
20Safety%20Requirements%20%28final%29.pdf)

Center for Disease Control Interim Guidance for Businesses and Employers (available at
https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html)

OSHA Guidance on Preparing Workplaces for COVID-19 (available at https://www.osha.gov/Publications/OSHA3990.pdf)

OSHA’s Interim Enforcement Response Plan for COVID-19 (available at
https://www.osha.gov/memos/2020-04-13/interim-enforcement-response-plan-coronavirusdisease-2019-covid-19)

Washington State COVID-19 Response “New Normal” Planning (available at
https://21652974-25d8-4ff1-bbc0-8687c8ec1f64.filesusr.com/ugd/e29733_d8ffb73aa9bb4977a67c7d3b42c2ad81.pdf)

Coronavirus (COVID-19) Prevention, General Requirements and Prevention Ideas for Workplaces (available at https://lni.wa.gov/forms-publications/F414-164-000.pdf)

[1] This Q&A, along with additional FAQs regarding  unemployment and COVID-19 and unemployment can be found at: https://esd.wa.gov/newsroom/covid-19.

[2] This Q&A, along with additional FAQs regarding discrimination under the ADA/Title VII of the Civil Rights Act of 1964 and COVID-19 can be found at:
https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americansdisabilities-
act.

This alert contains the most recent governmental guidance on COVID-19, which is subject to change at any time without prior notice. KTC will continue to monitor state, local and
federal authorities for additional guidance. Please reach out to your contact at KTC for the most up-to-date guidance.

If you need assistance in drafting a return-to-work program for your business or have questions about this alert, please consult with your contact at Karr Tuttle Campbell.

This Alert was prepared by Josh Howard.

 

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