Reopening the Workplace: Top Employer Considerations

As states begin phasing out or lifting stay-at-home orders across the nation, many employers are seeking guidance on what steps they need to take to safely and defensibly bring employees back to the office. If you missed Rebecca Bernhard’s May 5th presentation on Getting Back to Work, here’s a run-down on some of the top issues employers need to address.

Reconsider Who Needs to Be in the Office

In accordance with state and federal guidance, many organizations are rethinking their stances on telework. Employers should take a phased approach to bringing personnel back and continue remote working arrangements where operationally possible. Before opening the doors, employers will need to check local and state executive orders to determine the specific requirements in their jurisdiction.

Assess Discrimination, Retaliation and Administrative Risks

Discrimination risks should be considered whenever organizations are bringing back furloughed or terminated employees. In both instances, it’s important to have a legitimate business rationale underlying the decision and determine whether any workers who are being recalled or passed over are in protected classes under federal or state anti-discrimination laws. Similarly, potential retaliation claims can arise whenever an organization disregards employees who were engaged in protected activities (e.g., complaining about workplace safety or lack of protective equipment) when making reinstatement decisions.

When rehiring laid off employees, employers will need to complete new I-9s if three years have elapsed since the date of the first I-9. In most states, organizations should follow the same general procedures for new hires when recalling terminated workers, requiring re-acknowledgments on handbooks, non-compete agreements and other restrictive covenants.

Consider Paycheck Protection Forgiveness Criteria and FFCRA Next Steps

Employers who received Paycheck Protection Program loans and are seeking loan forgiveness have until June 30th, 2020 to restore full-time employment and salary levels for any changes made between February 15th and April 26th.

Assuming the Families First Coronavirus Response (FFCRA) applies to the organization, reinstated furloughed and terminated full-time employees will be entitled to up to 80 hours of paid sick leave and 12 weeks of extended family medical leave upon their return.

Consider Additional Litigation Risks

Potential claims that should be on your radar include Occupational Safety and Health Administration (OSHA), National Labor Relations Board (NLRB), negligence, retaliation, wrongful discrimination, workers’ compensation and wage and hour disputes.

Generally, if you’re bringing back exempt employees at reduced salaries, you need to reassess compliance with the salary basis test and provide a fixed weekly salary. For hourly workers, based on the extent of employer-mandated safety precautions, it’s important to note that time spent on safety checks or donning protective equipment is likely to be construed as paid time. Employers should also consider whether re-staffing decisions will trigger requirements under federal or state WARN Acts.

Provide a Safe Workplace

All organizations should consult the latest CDC, OSHA and local guidance and treat it as a baseline with regards to defending against potential agency or negligence claims.

Many states currently allowing re-openings are requiring employers to have, and in some instances file, return to work plans. Some states have espoused specific steps that employers must take. For example, in New York, those who are dealing with the public must wear masks, and in many states like Minnesota, mandated social distancing requirements apply.

In addition to phasing in workforces and encouraging telework, employers should follow basic infection prevention measures:

• Promoting hand-washing and providing hand sanitizer, tissues and trash receptacles.
• Encouraging workers to stay at home if they think they are sick.
• Allowing for staggered shifts and flexible worksites.
• Routinely disinfecting and cleaning surfaces and equipment.
• Discouraging shared office equipment.

Personnel should be encouraged to self-monitor and report sickness or symptoms as they arise. Organizations must also determine whether exposure risks at the workplace trigger any additional engineering or administrative control requirements under OSHA guidelines. A comprehensive plan will include protocols and training for isolating people with signs or symptoms of COVID-19.

With regards to health screenings, symptom checks and temperature readings are generally permitted, but the results are protected. Instead of recording and storing all temperature readings, employers should document the fact that they’ve sent employees home because they’ve exceeded thresholds.

Listen to Employee Health Concerns

Employers are encouraged to actively address employee concerns about health and safety, not only to mitigate the chances of future litigation, but to enhance community relationships.

Concerns about returning to work could trigger obligations under the Americans with Disabilities Act (ADA), and may require accommodations. If an employee has a valid mental or physical health concern, employers should strongly consider telework arrangements, especially if remote work hasn’t posed a burden for the employer in the past.

It’s important to note that employees have an OSHA right to refuse to participate in unsafe work. Similarly, Section 7 of the National Labor Relations Act (NLRA) protects an employee’s ability to act alone or with other employees to improve the terms and conditions of the workplace, including safety. Talking about pay is also generally protected, and the protections extend to discussions on Facebook or other online forums.

If you’re looking to learn more about the employment risks associated with workplace re-openings, you can find the full recording of Rebecca’s presentation here.

REBECCA J. BERNHARD is a partner with Dorsey & Whitney LLP in Minneapolis, Minnesota. Ms. Bernhard's experience spans traditional labor and employment, business immigration, and federal contract compliance and audits. She supports clients with their corporate transactions, advising labor and employment diligence, negotiating with new unions and conducting effects bargaining, and assisting her clients with post-acquisition or post-divestiture integration.

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This blog post is for general informative purposes only and should not be construed as legal advice or a solicitation to provide legal services. You should consult with an attorney before you rely on this information. This area of law is constantly changing and while we attempted to ensure accuracy, completeness and timeliness, we assume no responsibility for this post’s accuracy, completeness or timeliness.