By Lillian Markus

Employers have done a great job adjusting to workplace shutdowns and disruptions due to Covid-19. Now it’s time to pivot again—this time, planning for the workplace of the foreseeable future.

With all of the guidance from government agencies, rapidly changing employment programs, and the new realities of business, it’s easy to become overwhelmed. Here are some of the COVID-19 questions your HR department may need to answer. Human resources knowledge can offer some answers and things to consider as states and businesses begin to reopen.

My employees live in more than one state. How do I know which regulations to follow?

Businesses are governed by the laws of the area where they’re located, not by the locations of their employees’ homes. Businesses should follow the rules and regulations of their own states, counties, and municipalities

How does the Americans with Disabilities Act (ADA) impact how we accommodate higher risk individuals that are not going to want to return to the office?

The U.S. Department of Labor has not issued any temporary regulations or guidelines specific to the ADA. However, under the ADA and state equal employment opportunity laws, if an employee is concerned about returning because he or she is at a higher risk of severe illness from Covid-19 than other employees, the employee likely has a disability and is protected. If an employee is anxious about contracting the coronavirus if they return to the office, they may be protected if the anxiety rises to the level of a disability under the ADA or state law.

If that is the case, employers should work with the employees to address those concerns and to seek reasonable accommodations. Such accommodations may include changes to the workspace to allow for extra social distancing or continued work from home arrangements.

Some employees may be concerned about returning to work if they live with higher-risk individuals. Such a living arrangement likely does not afford the employee a right to a reasonable accommodation under the ADA or state law. However, many employers often try to accommodate workers in such circumstances if their business allows.

Please note that it is always important to document, based on operational needs, which categories of employees are prioritized to return to work to ensure consistency and reduce the risk of bias claims.

We recommend accommodating all employees, especially higher-risk individuals, as much as possible. How you treat these employees sends a powerful message to everyone in your organization.

What should we do about employees who have significant paid time off (PTO) due to canceled vacations? We don’t want to have too many people take vacations at the end of the year and leave us short-staffed.

If employees have “use it or lose it” PTO, we highly recommend relaxing your rules about how many days they can roll over to 2021. The same applies to employees who have put off elective surgery or otherwise have too much PTO to roll over under your current policies. We would recommend that you complete a quick audit of your employees’ PTO banks and see how many days they have left.

At the same time, it’s important to encourage people to take time off to disconnect from work.

If summer camps aren’t open or schools delay reopening in the fall, what should I do about parents with children?

Parents with children at home are facing huge challenges because many schools, camps, and children’s programs are closed, and childcare is almost impossible to find. Employers should be as flexible and understanding as possible. Can those employees work from home? Does the business have unused space that can be turned into a temporary childcare facility? Can work schedules be altered so parents can share childcare duties with a spouse or neighbor? You don’t want to put your employees with children in an impossible situation.

Organizations should also plan for the possibility that there may be a resurgence of the coronavirus in the fall, and some of the restrictions that have been lifted will be reinstituted. In some areas, schools may reopen on a staggered schedule, meaning each employee’s schedule may vary due to school.

If someone is unable to work because of childcare needs and schools and childcare centers are closed, they will likely be eligible for unemployment.

Some of our employees take mass transit, and I’m nervous about their potential exposure.

The Centers for Disease Control and Infection (CDC) has stated that commuting in a personal vehicle is safer than taking mass transit. If possible, organizations should offer incentives to encourage employees to drive, rather than take mass transit.

Is fear a good enough reason for an employee not to return to the office?

Just being afraid is not enough of a reason for an employee to not return to work from a layoff or furlough. If the employee was laid off or furloughed and chooses not to return to work due to fear, they will no longer be eligible for unemployment. If the employee was working from home but is now being asked to come into the office, you may be able to offer some flexibility and have them wait a few weeks and see how others are adjusting. This is not required, though. If the fear rises to the level of a disability, you may be required to provide an accommodation, as noted above.

Can you tell employees if a co-worker has tested positive for the coronavirus or other communicable diseases? Should employers do contact tracing in the office to limit the spread?

ADA privacy rules restrict employers from sharing personal health information of an employee. Employers should inform employees that possible exposure has occurred in the workplace without disclosing any identifying information about the individual who tested positive.

Contact tracing falls under new legal territory, but it is generally the responsibility of local health departments, not employers. Most organizations are waiting for guidance from those authorities.

How do I determine which employees to bring back to work?

When considering which employees to bring back to work, you should consider a number of factors:

  • Whether you will operate with a full or reduced staff
  • Essential vs nonessential; which roles are more critical to returning based on where the work is performed? The jobs that cannot be done well from home may be the ones to consider first. If you have employees who have been working remotely and are doing well, can they remain remote at least for the short term?
  • Will all employees return at one time or in waves?

We recommend reviewing existing job descriptions and considering revisions due to changes in operations due to Covid-19. You must use objective, non-discriminatory criteria for selecting employees for rehiring or recall to avoid discrimination claims.

What requirements do employers have to meet regarding OSHA standards?

Employers should abide by the Occupational Safety and Health Act’s general duty clause. The General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health Act of 1970, 29 USC 654(a)(1), requires employers to furnish to each worker “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.”

Employers should consider steps to address potential workplace hazards, including the following:

  • Prepare and implement basic infection prevention measures: promote frequent and thorough hand washing; encourage employees to stay home if they are sick; encourage respiratory etiquette; discourage the use of colleagues’ work desk, phone, etc.; provide hand sanitizer throughout the premises
  • Screen employees and visitors for fever
  • Use social-distancing techniques, such as staggered shifts, alternating workdays, reworked use of space, restricted in-person meetings, and limited customer volume
  • Offer personal protective equipment (PPE) that is consistent with the Occupational Safety and Health Administration (OSHA) guidance
  • Maintain regular housekeeping practices. Review cleaning techniques, and consider additional cleaning measures.
  • Minimize contact between workers, clients, and customers by replacing face-to-face meetings with virtual ones
  • Discontinue non-essential travel
  • Discourage or limit the use of shared space such as break rooms

Do employers have to report an employee who tests positive for Covid-19?

OSHA’s guidance, effective May 26, 2020, outlines reporting requirements.

Employers with 10 or fewer employees or in low-hazard industries must report only work-related coronavirus illness if it results in the employee’s inpatient hospitalization, fatality, amputation, or loss of an eye. If the employee caught the coronavirus at work or while performing work-related activities, the employer must record the illness on OSHA Form 300.

For most other employers, a Covid-19 case must be recorded on the OSHA 300 log if three criteria are met:

  •  A confirmed case of Covid-19
  • Work-relatedness
  • Illness resulting in death, days away from work, restricted work, or the transfer to another job, medical treatment beyond first aid, or the loss of consciousness

The challenge will be identifying whether the positive test/exposure is work-related. Employers will have to make a reasonable effort to conduct a mini-investigation while maintaining an employee’s privacy. Questions could include:

  • Asking the employee limited questions about how he or she believes Covid-19 was contracted
  • Inquiring about the employee’s work and nonwork activities, and possible exposure, leading up to the diagnosis
  • Investigating the employee’s work environment to determine whether Covid-19 exposure was possible. This might include considering whether other employees in the work area have tested positive, the employee’s job duties and exposure to the public, and whether the work areas are crowded and do not facilitate social distancing.

How do we promote social distancing?

Current best practices include the following:

  • Prohibit sharing of equipment, such as phones, headsets, desks, printers, etc.
  • Reconfigure workstations, conference rooms, and reception waiting areas
  • Install floor markings to ensure employees are separated by six feet
  • Require employees to walk down the hallway in one direction
  • Limit the number of people in an elevator at one time
  • Restrict the number of people who can gather in one room at one time
  • Continue to hold virtual meetings whenever possible

Can we require employees to use PPE?

Follow OSHA guidance and any requirements issued by state and local authorities, and make sure you have PPE available for your employees. We recommend training employees on the proper use of PPE. Put that training and PPE availability in writing, make those policies a condition of employment, and consider requiring employees to sign a written acknowledgment. Also, consider requests for reasonable accommodations for medical or religious reasons prior to taking any adverse action against any employees who refuse to use PPE.

Remember, your employees may be returning to work, but that doesn’t mean things are returning to normal. Communication, compassion, and flexibility are critical.

For a webinar with the latest guidance and best practices, please call Judy Lindenberger at 609-730-1049.