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17 June 2020
With the restrictions imposed to combat the COVID-19 pandemic slowly loosening, businesses are thinking about returning to work and what this will look like in practice.(1) While it will not be business as usual, this article highlights how employers can prepare their workplaces and navigate safety mandates and recommendations.(2)
Prioritising the safety of employees and customers is critical as employers prepare to reopen their businesses. All workplace policies should be in writing, keeping in mind that different locations may require different policies depending on the workspace layout. While employers cannot guarantee blanket safety, communicating the 'why' and basing policies on the science, Centres for Disease Control and Prevention (CDC) recommendations and other state and local guidelines will help employers to communicate the safety measures that they have taken, as well as employee obligations and disciplinary measures for non-compliance. As with all COVID-19-related policies, employers should:
CDC guidelines provide that social distancing is one of the best tools for stopping the spread of COVID-19. As businesses reopen, social distancing protocols may vary based on the industry, workplace setting and culture. Employers should consider CDC guidelines as well as state and local government recommendations and requirements when developing a plan. Implementation mechanisms may include:
The CDC recommends the use of simple cloth face coverings in public settings where social distancing measures are difficult to maintain. Employers should follow state and local regulations as well as Occupational Safety and Health Administration (OSHA) and CDC guidance on personal protection equipment (PPE) protocols. If an executive order or state guidelines require employees to wear PPE in order for a business to reopen, employers must provide said PPE to comply with the law. Some states (eg, California and Illinois) also have reimbursement laws which require employers to reimburse employees for reasonable and necessary business expenses; thus, if facemasks are required, employers must reimburse employees if they are not provided. Recommendations for PPE specific to certain occupations or job tasks will depend on geography, worker risk assessments and their effectiveness in preventing the spread of COVID-19. CDC and OSHA guidance should be checked regularly for any updated requirements applicable to businesses.
Implementing employee self-screening and employer screening protocols prior to employees entering the workplace should be part of employers' comprehensive reopening plans. Some employers are taking employees' temperatures at the door before they enter the workplace. However, temperature taking is only one element in a comprehensive COVID-19 reopening plan, as many people infected with COVID-19 have no temperature and are asymptomatic or may present with other symptoms but no fever. Employers could also use questionnaires. Some state and local guidelines (eg, those of Colorado, New Hampshire and Connecticut) require or strongly recommend symptom checks by employers and Equal Employment Opportunity Commission guidance permits employers to conduct mandatory testing for the presence of COVID-19 if they ensure that the tests are accurate and reliable and the information remains confidential. As employers implement these new screening protocols, they should consider:
Whether employers are handling new sanitisation and cleaning protocols in-house or through a third-party vendor, it is important to remember that it is employers' responsibility to keep their workplace safe and comply with their OSHA duties given the highly contagious nature of COVID-19. Employers must communicate clearly through a written internal policy. New cleaning protocols should comply with state and local guidelines and CDC guidance and be consistent with best practices for the employer's specific industry, which will vary depending on the nature of the business. For example, if there is shared equipment (eg, time clock stations for staff), employers should develop a policy on how to regularly clean that equipment or consider possible non-contact options.
For further information on this topic please contact Stephania C Sanon at McDermott Will & Emery's New York office by telephone (+1 212 547 5400) or email (firstname.lastname@example.org). Alternatively, contact Michelle Strowhiro at McDermott Will & Emery's Los Angeles office by telephone (+1 310 277 4110) 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.
(2) This article is part two of a series on returning to work after the COVID-19 pandemic (part one is available here: "Preparing to reopen: how to smoothly transition back to work").
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