How Employers Can Minimize the Possibility of Legal Problems while Reopening Businesses

As COVID-19 infection rates decline and the country inches its way toward “reopening,” employers must determine how to serve the needs of their businesses while providing a safe environment for employees, clients, customers, and visitors.  With information about the spread of the virus changing constantly, employers must carefully consider what, if any, changes they should institute to create and maintain a safe working environment.  Employees have already brought a number of lawsuits related to COVID-19 and worker safety; employers would therefore do well to try to address potential trouble spots before returning employees to work. This alert identifies several key issues employers should be considering as they prepare to return to in-person business, and presents ways to approach those issues proactively.

The most immediate pitfalls for employers are claims that they: (1) deliberately or negligently exposed employees to the COVID-19 virus; (2) unlawfully discriminated against employees based on their race, gender, national origin, disability, religion, age or other protected classes in deciding matters such as which employees to return to work, the timing of their return, or the specific jobs they were asked to perform upon return; and (3) deliberately or negligently mishandled private, medical information.

1.  Maintaining a Safe Working Environment 

• Determine If and How the Workplace Can Be Reconfigured to Maximize Employee Safety

There is not much doubt that “social distancing” is here to stay, at least in the short term.  Employers must, therefore, consider how best to maintain social distancing in the workplace. Depending upon the workplace configuration, an employer might consider spacing desks/cubicles at “safe” distances from each other, staggering work hours and lunch breaks, requiring some employees to report to work while allowing others to continue working remotely, or otherwise reducing the number of employees who are present in the workplace at any given time.  If possible, employers might also consider erecting physical barriers to minimize employee contact and closing or limiting access to what had been communal spaces to prevent large numbers of employees from congregating in one place.

• Decide What Resources Will Be Needed to Promote Safety and Secure Them In Advance

The use of personal protective equipment (“PPE”) – at least on a voluntary basis – is likely to continue as businesses reopen.  Employers will have to determine whether to require employees to wear PPE, such as face masks or gloves, in the workplace.  In the event the employer chooses to require PPE, it would be wise to search out suppliers now, before the inevitable rise in demand that will occur once stay-at-home requirements are lifted.  In a similar vein, employers will have to determine how best to keep the worksite itself clean and virus free.  The establishment of cleaning and disinfecting protocols is a must, so employers should also be sure to maintain an adequate supply of soap, hand sanitizer, etc.

• Monitor Employees for Potential Exposure

The United State Equal Employment Opportunity Commission (“EEOC”) has determined that during this pandemic, employers may ask employees reporting to work if they have been diagnosed with COVID-19, exposed to someone with COVID-19, or are experiencing symptoms of COVID-19, none of which employers could do previously without violating the antidiscrimination laws.  Employers may also measure body temperatures and administer COVID-19 tests to employees without violating the law.

Employers will now have to consider such matters as whether to screen or test employees entering the workplace, the type of screening that will be administered, the frequency of the screenings, and what measures it will take if an employee tests positive.  In addition to establishing a protocol for screening or testing employees and working out the logistics, employers will also have to develop a strategy for working with employees who might disclose or show symptoms of COVID-19, and a process for bringing those employees back to work once symptoms have abated.

2.  Avoiding Claims Under Anti-Discrimination Laws

Several aspects of anti-discrimination law have been relaxed to allow employers to protect workplaces, such as allowing employers in some cases to ask employees about their health, which may have constituted handicap discrimination prior to the pandemic.  However, federal and state agencies tasked with enforcing the anti-discrimination laws have made it clear that those laws are still in effect.  Employers have to be careful not to violate those laws by:

• Using race, national origin, gender, age or other protected characteristics in determining which employees to bring back to work and when.  In addition to workers who were affected by stay-at-home orders, employers may be considering bringing back workers who were laid off or furloughed.  The decisions on whom to bring back and when they will be returned should be based on the needs of the business, without regard to the protective classes of employees.
• Subjecting “vulnerable individuals” to disparate treatment.  Employers should not refuse to bring employees back to work, or limit their job opportunities, based on their status as “vulnerable individuals,” meaning those over the age of sixty-five or who have underlying medical conditions that might make them susceptible to serious illness if exposed to the COVID-19 virus.  Those actions could make the employer liable for age or disability discrimination, respectively, even if the employer had the “good intention” of protecting those employees from possible exposure.
• Not focusing on the needs of the business in bringing employees back to work. Employers should avoid using criteria other than what the business needs to determine who to bring back to work.  For example, if an employer refuses to bring back a woman who is pregnant, even if the intent is to protect her and the unborn baby from possible COVID-19 exposure, the employer could find itself liable for unlawful gender discrimination.
• Failing to accommodate religious beliefs. Some employees may refuse to participate in practices they claim violate their religious beliefs, such as wearing certain types of PPE. Employers should not discipline those employees without first engaging in a dialogue to determine whether the parties can fashion a reasonable accommodation.
• Probing too deeply into medical conditions. Employers should be careful not to question employees about underlying medical conditions that might make them susceptible to serious illness if exposed to the novel coronavirus, or trying to compel them to self-disclose such conditions. While it is not a violation of the law during the pandemic to question employees about their exposure to COVID-19 or about any symptoms they display related to COVID-19, employers cannot ask about other medical conditions.
• Failing to accommodate disability.  Employers should not discipline employees who refuse to return to work when requested because of a fear of contracting COVID-19 without first having had a dialogue to determine whether the fear is disability based and exploring reasonable accommodations, or is unprotected activity that may be the basis of discipline.

3.  Maintaining the Confidentiality of Medical Screening/Test Information

If screenings/tests are to occur, the employer must maintain the confidentiality of the results because failing to do so could be the basis of liability.  That will require the employer to think through the logistics of how, when and where the screenings or tests will occur and how employees who test positive will be “confidentially” advised of the results. The employer should notify other employees who may have come into contact with the employee who tested positive of their possible exposure to COVID-19, but should do so without identifying the employee who tested positive. The employer must also store test results or any other medical information related to employees in a secure file – not in personnel files.

Action Plan
To implement best practices, we recommend the following:

• Keep Abreast of the Latest Guidance from Federal, State and Local Authorities:

There are a myriad of mandatory and recommended guidelines that impose requirements or restrictions that will impact an employer’s decision on when and how to reopen, including executive orders, guidance from federal agencies such as the EEOC, the Centers for Disease Control and Prevention (“CDC”), and the Occupational Safety and Health Administration (“OSHA”), state health department directives, and local ordinances.  Each employer must become familiar with the requirements relating to its particular business and locale.  Congress and many state legislatures are considering laws that would limit employer liability for claims related to COVID-19, but employers should, at the very least, ensure that they are currently in compliance with the most up to date federal, state and local requirements and best practices for reopening safely.

• Create a Cross-Disciplinary Team to Review and Implement Back-to-Work Guidelines

Unfortunately, there is no cookie-cutter, one-size-fits-all solution to what employers should do.  Variables such as the nature and size of the business will, in some cases, dictate the most effective approach to reopening.  Employers should consider establishing, to the extent practicable, a team that represents major functional areas of the company to consider how to put it in the best position to reopen safely. While leadership will ultimately determine when and how to reopen, those decisions should not be made in a vacuum. Input from team members who are familiar with the challenges and potential problems that might come up on a day-to-day, practical basis related to functions such as Human Resources, Operations, Information Technology, Legal, Billing, Accounts Receivable, etc. will be invaluable in developing an effective, comprehensive reopening strategy. Further, creating an accountable body to institute and oversee back-to-work procedures will best ensure they are comprehensive, cohesive and practical.

• Create a COVID-19 Policy

To the extent possible, procedures and practices that are implemented specifically to deal with returning employees to work, such as testing and screening protocols, should be included in a formal written policy.  Similarly, any measures such as prohibiting the sharing of equipment or tools, limiting the number of employees who can congregate in one place, etc. should be included in the policy.  The policy can be characterized as “Temporary” or “Interim” and revised as requirements change or more information becomes available about COVID-19.  A formal policy that is enacted and enforced will be an invaluable aid in the event the employer is challenged about the efficacy of the measures it took to prevent its employees from being exposed to COVID-19.

• Train Managers and Employees on All Procedures and Policies

It is imperative that supervisors and managers understand any new policies and procedures, are trained in how to recognize violations, and understand the appropriate response to situations that might arise.  Employees should be trained to the extent necessary to ensure that they understand their obligations under the policies and the consequences for failing to adhere to them.

• Remain Vigilant

Employers have an obligation to provide a work environment that is safe for its employees and free from unlawful discrimination. The CDC recently issued guidance indicating that businesses should not reopen unless (1) the reopening is in accordance with applicable government guidelines, and (2) they are prepared to protect vulnerable employees.  https://www.cdc.gov/coronavirus/2019-ncov/downloads/community/workplace-decision-tree.pdf  Once those conditions are met and businesses reopen, as more becomes known about COVID-19, employers should adjust their policies and procedures to reflect the latest and best information.

For additional information, please contact the author of this Alert, Joe Edwards ([email protected]; 617-456-8131) or Dan Tarlow, Prince Lobel Employment Practice Group Chair ([email protected]; 617-456-8-13).