408-478-4100

By: Lisa Chapman, Esq.

Businesses will reopen eventually – if not soon.  We offer the following recommendations for doing so in a manner that is thoughtful, compassionate and complies with federal and state laws. We focus on the main issues of integrating employees back into the workplace (including those with remote work arrangements), interaction with customers, and managing financial ramifications of the integration and other business issues.

Re-onboarding/reintegrating employees on furlough or leave:

Involve your workforce – this is not a one size fits all situation.  Listen to your employees.

  • Each employee population will have very different attitudes regarding returning to work or continuing to work remotely, if at all. Employees’ feelings and concerns will be informed by their own health issues, the health of their families, quarantine requirements, mental health issues resulting from the pandemic, their childcare obligations, and a host of other issues. It is critical that you listen to them and address their concerns.
  • Consider creating an employee taskforce to bridge communications between management and employees. The taskforce should include a diverse group of employees who represent employee populations throughout your company. Keep in mind that the level of risk to employees will vary greatly depending on their job duties and roles.
  • Consider using an anonymous hotline as an additional means of allowing employee input, including suggestions, complaints, and other types of comments.

Legal risks

  • As you reboard or rehire employees, you need to ensure that you are not making hiring decisions that could be perceived as discriminatory. Create a statistical survey of all reboarded or rehired employees. Verify that your hiring and reboarding practices do not discriminate against any segment of your employee population. Be mindful of the recent targeting of individuals of Asian descent as documented in the press. Be careful to avoid discrimination of any employees whom you know to be suffering from pre-disposed medical conditions.
  • Under Federal and California OSHA laws and regulations employers have an obligation to maintain a safe workplace. Carefully comply with all OSHA regulations.
  • Manage compliance with wage and hour laws carefully when employees return to work. Employee productivity may decline as new policies and procedures are implemented (i.e., sanitizing workspaces, staggered start times, etc.) Make sure that the minimum annual wage is met for exempt workers.
  • Manage allocation of sick leave and PTO for all workers. Treat all employee requests for leave and sick time equally.

How to onboard?

  • Send written notifications of onboarding to employees. Explain what is expected regarding employee work obligations going forward. Ask employees to return on a certain date.
  • Do not overpromise regarding safety. Be honest.

How to handle employees that do not want to return to work?

  • Follow federal and state laws regarding health-related accommodation requests made by employees. Handle such requests on a case by case basis, while at the same time being mindful of the fact that you need to treat all employees equally. If an employee notifies you of a health condition or health concern you are obligated to inform them of their rights under FMLA (if applicable) and to commence the “interactive process” under the ADA.
  • Be mindful of obligations under the FFCRA regarding childcare obligations and extended leave rights.
  • Follow CDC guidelines and state laws.

The new workplace – what should it look like?

Telecommuting

  • Create policies to document your telecommuting policy.
  • Address how you will monitor employee work hours and performance.

PPE

  • Make available face masks and other necessary PPE equipment.
  • Implement a mandatory face mask policy to the extent applicable.

Health checks

  • Follow CDC guidelines regarding requirements necessary to return to work. Alert employees about what symptoms to watch out for.
  • Do NOT target employees’ health situation in general – focus on Covid-19 symptoms only.
  • Consider temperature checks (touchless if possible).
  • Screeners of health check should be trained and have protocols.
  • Implement controls for your workplace for safety.
  • Create and implement protocols for how you will handle employees who assert that they have COVID-19 type symptoms identified by the CDC.

Social distancing – recommendations

  • Avoid lines at business establishments and mark spacing requirements.
  • Enforce a strict six-foot distancing requirement for everyone.
  • Stagger workers’ schedules if needed.

Common workspaces

  • Elevators – manage the number of employees allowed to access elevators and other confined spaces at any given time.
  • Limit breakroom and fridge sharing. Disconnect the ice dispenser.
  • Provide sanitation for commonly used technology devices, printers, etc.
  • Place plexiglass screens near workstations, as needed.

Ease your Employees back into the workforce

  • Anticipate productivity issues.
  • Continue to document employee performance regularly and anticipate potential future retaliation claims of poorly performing workers.
  • Be extremely cautious about employee discipline and terminations. Check in with your counsel frequently regarding those decisions.
  • Employees may overreact to the health of their co-workers. Be mindful that your employees may overzealously monitor their co-workers.
  • Retaliation is a serious risk. Be careful not to retaliate or be perceived to have retaliated against an employee who may be symptomatic.

 Protocols for dealing with an employee that has Covid-19 or related symptoms

  • Be mindful of obligations to keep your employee’s health situation confidential. HIPPA, and other laws apply.
  • Follow state and federal regulations carefully. Temperature checks may be appropriate.
  • Immediately isolate employees who show designated COVID-19 symptoms.
  • Provide PPE and other equipment as needed to employees who may have been exposed to that employee.
  • Be flexible and compassionate.
  • Develop and implement quarantine procedures.
  • Create protocols for the reboarding of these employees after they return to work.
  • Avoid retaliation.
  • Manage ongoing OSHA requirements and obligations

Office or Plant Sanitation workers and other individuals who enter your workplace

  • Monitor and/or manage sanitation teams that clean your office. Ensure that they comply with your safety protocols.
  • Create and implement safety policies for all individuals who enter your workplace, such as requiring the use of facemasks. Post written requirements at the entrance of your workspace.

Revise Written Employee Handbook to reflect changes in law and practice

  • Some of your current policies may need to be amended, such as telecommuting.

If you have any questions about these newly published guidelines and other employment law issues, feel free to contact Lisa Chapman at lchapman@strategylaw.com.

This blog is written as of May 14, 2020.  Recommendations and legal requirements are changing rapidly, so please continue to review our legal updates or review postings on relevant government websites.

All blogs on this site are for educational purposes only, do not constitute legal advice or opinion, and should not be applied to your situation, or any specific situation, without consultation with counsel. Strategy Law, LLP does not provide any legal advice concerning any matter discussed in a blog except upon formal engagement including, without limitation, execution of Strategy Law, LLP’s formal legal services agreement, and with respect to specific factual situations.  No blog constitutes a guaranty, warranty, or prediction regarding the result of any legal matter discussed in the blog or any representation.

 

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