Earlier this week, we discussed how companies in the early stages of reopening following the pandemic can reopen safely, with an eye towards observing social distancing. In this next posting, we wanted to examine the legal aspects associated with bringing your workers back in the office and what you can do now to ensure a seamless and compliant restart to your usual 9-to-5.
Labor and employment attorneys at Cozen O’Connor, as well as the legal brains over at NOLO and some bright minds at Forbes, recently outlined several key tips for consideration when it comes to reopening:
Follow state and local guidance:
Rather than go rogue and devise a plan of your own, look first to the federal government’s three-phase reopening strategy. This plan is designed to serve as a guide for state and local reopening plans, with most counties then determining their own timelines based on this guidance. Now, the timelines themselves are rather nebulous at the moment – with some states going hog wild and throwing open the doors to all kinds of businesses, and others taking a more cautious approach – but the plans for what employers will be responsible for in the post COVID-19 workplace are even more vague! The White House has rather vaguely recommended that businesses plan to observe social distancing, step up their cleaning games, keep telework as an option for as long as possible, and even consider testing employees for COVID symptoms, but again, much of what will be expected of business owners will be dictated at a more local level. In short, know the federal rules, but keep an ear to the ground for guidance that comes from closer to home (and that will likely be more specific!)
Non-essential businesses have time to plan:
While businesses deemed essential are being required to open based on the whims of state and local officials, non-essential businesses have significantly more autonomy when it comes to determining their reopening plans. In a recent Forbes article, experts recommended that these businesses ramp up more slowly, with plans calling first for leaders to join together virtually to build out the strategy and develop guidelines and parameters for reopening, then allowing workers to further build out infrastructure and complete as many tasks as possible from afar. As part of this planning phase, bosses should also consider who physically needs to be in the office at this time and who can continue to work from home and potentially consider a graduated return to work policy to keep physical numbers down. Next, business leaders should take steps to ready the actual building for employees to return, including making sure that workers have the tools that they need to observe social distancing rules and have the required personal protective equipment (where necessary).
Revise your policies as needed:
In these unprecedented times, it is highly unlikely that you’ve had to have policies in place that will dictate when and under what circumstances employees will need to return to work. As a result, you may find yourself drafting some policies from scratch to guide such a situation. In putting together these “recall policies,” you should first think about creating a reasonable time period for employees to get their proverbial ducks in a row and figure out childcare or other issues that may infringe upon their ability to return to work. Next, you might want to consider having employees sign a letter of intent to return to work so that you can have a clear idea of your numbers before you throw open your doors. It should be noted that depending on the size of your company, some employees may choose to delay their return under the Families First Coronavirus Response Act, which provides paid leave to those who can’t immediately return to work. However, it should be noted that workers who refuse to return to work can potentially endanger their benefits under the Federal Pandemic Unemployment Compensation program, which provides workers up to $600 per week in additional unemployment benefits. Further, you should devise a plan for call outs – with Cozen O’Connor noting that you can either draw a hard stance and state that any failure to show up on your reopening day constitutes a voluntary resignation, or you could consider a softer “grace period” to allow for the natural bumps that may occur as people navigate return to work issues.
Consider your sick leave policies:
As part of the Families First Coronavirus Response Act, employees at certain companies are also eligible for emergency paid sick leave. Again, these policies typically follow those of the FMLA in terms of eligibility (so it’s based on company size and number of months the worker has been at your company), but it will allow workers access to paid leave for reasons including if they are required by federal, state or local officials or a healthcare provider to self-quarantine, if they are experiencing COVID-19 symptoms and seeking a formal diagnosis, if they are caring for an individual that is self-quarantining or experiencing symptoms, and if they can’t find childcare coverage because schools or their usual daycare facilities are closed. Specifically, the policy gives full-time employees up to 80 hours of paid sick leave, while part-timers can receive up to the number of hours typically worked across a two-week period. For those companies not eligible for these rules, you may want to consider relaxing your typical sick leave policy to allow workers to take the time they need, especially during quarantine or in the presence of symptoms, so that you can best protect your workforce.
Consider how you will communicate critical information:
When delivering information to employees, Forbes recommends invoking the Stockdale Paradox, which calls for you to “lay out the hard facts of the current situation – in detail with a calm, composed, polite and authoritative tone and manner.” These facts should be “things that any rational person would agree are true no matter what bias or perspective they bring to the situation – objective, scientific truths as opposed to subjective, personal, cultural or political truths, opinions or conclusions.” To further assuage fears, you should lead with information about how you plan to protect your workforce, including how you are stepping up your hygiene practices and what PPE will be available to employees and who will be providing it. Now, with these communications, you do need to tread carefully. Cozen O’Connor notes that you shouldn’t dismiss employee concerns, particularly if the employee making the complaint is from a vulnerable population, as you can find yourself on the receiving end of a discrimination lawsuit, particularly because these folks aren’t supposed to return to work until Phase three under current federal guidelines. Further, any employee who states that they are experiencing difficulty returning due to mental health concerns is potentially eligible for accommodations under the Americans with Disabilities Act (ADA). In these cases, you’ll have to follow due process and engage in the interactive process regarding potential accommodations and change your practices accordingly. While there’s not yet a clear path for opening post-pandemic, the one thing legal experts do agree on is that it will likely become a legal minefield. As such, we recommend that you consult with legal experts should a sticky situation arise, refer to your policies, and implement any changes as clearly, concisely and fairly as you can.