How to Re-Open for Business: Some Legal Best Practices

How to Re-Open for Business: Some Legal Best Practices

Businesses are starting to reopen and ramp up as stay-at-home orders are lifted across the county. However, the coronavirus continues to spread. Employers must take certain precautions to ensure the safety of their workforce as well as to comply with federal, state, and local guidelines. Below is a summary of the guidelines promulgated by the Centers for Disease Control (CDC) and President Trump’s Guidelines for Opening Up America Again.

Recalling Employees

If employers are not able to bring back all furloughed employees, they should develop a plan for determining which employees to recall. The plan should detail the business need for recalling certain roles or employees. Employers may also want to conduct a risk analysis to determine if any employees could have a legal claim for not being recalled, based on certain protected characteristics (race, religion, age, etc.) or for engaging in certain protected activities (e.g., applying for sick leave or FMLA under the Families First Coronavirus Response Act, or having made protected reports).

Accommodation Policies

Employers should also take some time to determine what sorts of accommodations can be reasonably provided to employees who may become ill or who fall into a high-risk category. Employers should ensure that such a policy is consistently applied to employees seeking accommodations.

Generally, employers may not inquire into health conditions. However, because COVID-19 has been identified as a “direct threat” under the Americans with Disabilities Act (ADA), employers may ask employees to disclose health information related to COVID-19 in an effort to keep employees safe and develop contingency plans. It is best for employers to seek this information in a generalized manner with a yes or no answer so as to avoid forcing an employee to disclose any more information than is necessary. For example, employers may ask employees to answer the following questions with a yes or no:

  1. Are you age 65 or older?
  2. Do you have any of the following health conditions?
    • moderate to severe asthma
    • serious heart conditions
    • immunocompromised from cancer treatments, smoking, bone or organ transplants, or other immune deficiencies
    • severe obesity (body mass index of 40 or higher)
    • diabetes
    • chronic kidney disease undergoing dialysis
    • liver disease

This information can be used in developing a plan to address accommodations for high-risk employees. For example, high-risk individuals may be placed in positions where they will come into less contact with the public, or be accommodated with work-from-home options. Such sensitive and personal information should only be collected if you have a legitimate business reason for doing so.

Safety Protocols

Employers should adhere to safety protocols, as promulgated by the CDC and federal, state, and local governments. Some suggested safety measures include:

  • Providing face masks to all employees and visitors (employers in Illinois must provide facemasks to all employees)
  • Making hand sanitizers and sanitizing wipes readily available
  • Installing workstation dividers and guards
  • Training employees on proper social distancing
  • Setting limits on the number of employees/customers at a location (e.g., no more than 4 people in a conference room)
  • Staggering work shifts
  • Limiting business travel
  • Upgrading HVAC and filtering capacity
  • Removing common touch-points, such as replacing door knobs with automatic doors or foot-openers
  • Providing additional personal protective equipment (e.g., gloves or a face guard) if needed, based on the nature of your business and employee needs

Employers will need to provide accommodations to employees who have a health issue that interferes with their ability to adhere to safety protocols. For example, you should provide non-latex gloves for those with allergies, mask alternatives for those with asthma, etc.

In addition to implementing safety protocols, employers may decide to perform daily wellness checks on employees prior to having them entire the premises. Many states require their businesses to perform such checks on employees. Wellness checks can include a daily temperature reading and questionnaire regarding recent symptoms, exposure, and travel. Employers can also encourage self-reporting by providing employees with paid sick leave. Employers should provide notice to their employees of the steps being taken, including any wellness checks and temperature checks, to guard against COVID-19.

Temperature Checks

Measuring an employee’s temperature would usually be considered a medical examination. However, because of precautions and guidance issued by the CDC and other authorities, employers may measure their employees’ body temperature. Ideally, temperature checks should be taken before an employee starts work. Employees waiting to have their temperature checked should maintain social distancing.

If possible, a medical professional should be taking temperatures and assessing employees. If that is not feasible, proper protective equipment (e.g., protective clothing, masks, eyewear) and training should be provided to the employees tasked with monitoring temperatures. These employees should also be carefully trained on confidentiality and privacy requirements.

The results of the temperature check are subject to ADA confidentiality requirements, as is the case with any health information. Thus, employers should ensure that the temperature reading and result are shielded from other employees. It is best not to record the results of temperature checks so as to avoid potential breach of privacy laws. If recording is necessary, data elements should be minimized, encrypted, and accessible only to key personnel with a need to access such data.

Employees found to have a fever should be physically separated from other workers and sent home as soon as practicable. In such cases, results of a temperature check should be retained, but subject to the same high confidentiality standards.

If an employee refuses to undergo a temperature check, that employee may be sent home. However, the employee may still need to be paid, depending on his or her exempt or non-exempt status and duties.

As regulations surround the coronavirus are in flux, business owners and managers should keep an eye on federal agency guidance and other directives, and should be in regular communication with their business and employment counsel.

The laws and guidance related to COVID-19 are changing rapidly. The statements contained herein are not intended to provide legal advice, but rather to represent our best interpretation of current guidance. As always, if you need help, seek out a competent employment and business attorney.

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