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01 July 2020
The COVID-19 pandemic has put unprecedented strain on organisations of all sizes across all industries.(1) The uncertainty of the new normal is leading some employers to consider extreme, and often unnecessary, new policies in anticipation of the eventual return to work. To properly navigate the complexities of these novel COVID-19 employment issues, employers need innovative but practical solutions.(2)
This article focuses on preparedness for the opening-day obstacles that employers are likely to face as they bring their employees back to work.
As employers plan for opening day at their workplace, they must remember that there is no one-size-fits-all solution. They must be rational and purposeful as they put together their preparedness plan and have clear documentation and a communication plan ready. Their reopening will depend on several factors, including:
Some employers are taking the most conservative approach and applying it across the board to multiple locations, while others are starting with a baseline and then making local adaptations to comply with specific guidance from the state or local government. Whatever approach employers take for their business, they must communicate any policy changes in advance to both their workforce and customers to ensure transparency and do so in a clear and concise way. Employers should explain the new policies and why they are implementing them, as well as how they will be enforced and any disciplinary action for non-compliance so that there is no confusion on Day 1. It may also be helpful to designate someone in the organisation to be a conduit of information from the Equal Employment Opportunity Commission, the Centres for Disease Control and Prevention, the Occupational Safety and Health Administration (OSHA) and the state and local governments to better prepare for any changes that must be made to employers' policies due to updated safety guidelines or changes to state and local phased opening guidance.
Training employees on new COVID-19-related policies and protocols before they return to work is a critical step in the reopening process. Information and communication are key to ensuring a safe and smooth return. Employers should leverage technology to hold virtual training sessions or record training videos to distribute via email. In some cases, employers may be able to host an in-person training for a small group, but they must follow appropriate social distancing guidelines and remember that any training time is compensable. Training should be customised to address different audiences (eg, separate sessions for HR, managers and supervisors and frontline non-exempt employees). Managers should be trained on how to:
All employees should be trained on new safety protocols and requirements, including:
Employers should consider creating an acknowledgement or consent form requiring employees to affirm notice and compliance with these new policies.
Employers must be flexible when handling Americans with Disabilities Act (ADA) disability accommodation requests on reopening. These are unique times, which require unique and creative solutions. The typical accommodations that employers may have made for an employee may not work in the current work environment because of safety or hardship reasons. Accommodations may also be temporary – employers must communicate clearly if there is a specific end date.
Under the ADA, only "qualified individuals with a disability" are covered, so employees have the right to request reasonable accommodation only for their own disability (eg, they are not covered as a caregiver for a sick parent or child at home, although they may be eligible for leave under the Families First Coronavirus Response Act or the Family and Medical Leave Act).
The ADA covers a wide range of disabilities and the effects of the virus could exacerbate some mental health issues (eg, anxiety, obsessive compulsive disorder and post-traumatic stress disorder). If an employee requests an accommodation, employers must engage in an interactive process. The first step is to ask questions. For example, how does the disability limit the employee's ability to perform their job function? If not obvious from the description, employers may need to request medical documentation or rely on alternatives (eg, a prior doctors visit, previous accommodation documentation if not outdated or a telemedicine consult). Employers should discuss the requested accommodation with the employee and explore the options to allow them to continue to effectively perform their essential job functions. Accommodation requests may vary and depend on industry, work environment and individual job responsibilities. Some common COVID-19 related accommodations include:
In some instances, if no accommodation is feasible, employers may need to consider placing the employee on leave, often as a last resort.
One of the more important issues for employers and a common request is an exception to wearing a mask. Many state and local governments require the use of face coverings, including in the workplace. When addressing requests for an exception to wearing a mask, whether due to respiratory issues, anxiety, claustrophobia or another disorder, it is important to balance accommodating a medical need with safety concerns for the workforce. Employers should consider the work environment and conduct an individualised assessment of the facts (including an employee's limitations). Use the interactive process to find alternatives to accommodate the request, whether this means having the employee telework or change job duties to avoid coming into contact with others.
Due to the COVID-19 pandemic, OSHA is more important than ever across all industries, not just those at high risk (eg, healthcare and manufacturing). Under federal OSHA guidelines:
OSHA also requires that employers report a case of COVID-19 if confirmed and is work-related and involves one or more of the general recording criteria (eg, medical treatment beyond first-aid, days away from work or death). In addition, there are local state OSHA rules that employers should consider as they establish new policies and protocols on reopening their workplace. At present, 30 states require COVID-19 preparedness plans, outbreak plans and/or hygiene training. Some features of state requirements include:
As employees return to the workplace, employers should continue to train managers and supervisors on how to address any safety-related complaints. Complaints should be taken seriously and addressed directly with the employee to better understand the issues or concerns. Employers should communicate the results and let the employee know how the issue was resolved. In all cases, there should be no retaliation and management should apply policies consistently to mitigate the risk of further claims.
For further information on this topic please contact Maria C Rodriguez at McDermott Will & Emery's Los Angeles office by telephone (+1 310 277 4110) or email (firstname.lastname@example.org). Alternatively, contact Jeremy White at McDermott Will & Emery's Washington DC office by telephone (+1 202 756 8000) or email (email@example.com). The McDermott Will & Emery website can be accessed at www.mwe.com.
(1) This article is based on a recent webinar, available here.
Saniya Ahmed, associate, assisted in the preparation of this article.
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