Plan Now for Workforce Reentry as Shelter-in-Place Orders Come to an End
Labor & Employment Alert 04/30/20 Lindsey W. Davis, Steve Kruzel, Otto W. Immel
While the vast majority of the U.S. population is currently living (and, in many cases, working) under some form of Shelter-in-Place order due to the COVID-19 pandemic, many states which have issued orders restricting the operation of businesses—such as California, Florida, South Carolina, and Tennessee—have begun lifting or are considering lifting such orders in the near future. Those states and others will soon be permitting businesses to gradually return to normal operations, albeit with potential restrictions and limitations.
In anticipation of the easing of the orders and the beginning of a return to more normal operations, employers should be proactively taking steps to prepare for the physical return of their employees to their offices and facilities. While not an exhaustive identification of all possible issues employers may face, the following are some of the top practical and legal action items that employers should consider as they develop their own individualized plan to return teleworking, furloughed, or laid-off employees to the workplace.
1. Preparing the Workplace for Reentry
- Consider Developing a COVID-19 Reentry Task Force – If your company has not done so already, consider developing a multidisciplinary task force charged with creating, communicating, and enforcing the Company’s reentry plan. The task force should determine when to reopen, with consideration paid to the risk levels within your geographic area and orders and guidance from federal, state, and local government entities.
- Consider and Implement Changes to Ensure Facility Hygiene – While measures relating to facility hygiene will be unique to each facility, employers should consider schedules for cleaning and disinfecting the work area, methods for increasing air exchanges, opportunities for ensuring physical distancing of employees once they return to work, and ways to distribute necessary personal protective equipment (PPE) and hygiene supplies.
- Consider and Implement Screening Procedures – To protect the safety of your workforce, employers should consider options for testing (such as temperature testing) and monitoring (such as self-reporting/acknowledgments) for the presence of the COVID-19 virus following employees’ physical return to work. In some cases — such as for “essential businesses and operations” in Wisconsin — the development of policies and procedures to prevent workers from entering the premises if they display symptoms or have had contact with a person with a confirmed diagnosis of COVID-19 is required. In conjunction with any such testing, employers will want to ensure they are complying with the Americans with Disabilities Act (ADA), federal and state wage and hour laws, and the Occupational Safety and Health Act (OSH Act), all of which can be implicated depending on the type of testing utilized.
- Review and Implement Policies – Review existing policies and postings to ensure compliance with recently implemented federal and state COVID-19-related legislation, including the Families First Coronavirus Response Act (FFCRA) and other state paid and unpaid leave laws. Employers should also create, or revise as appropriate, policies and procedures that may be implicated by the pandemic, including those covering attendance, travel, teleworking, and temporary requirements for physical distancing (among others).
2. Returning Employees to Work
- Consider Whether to Return Employees in Stages – To avoid a potentially significant influx of employees returning to a worksite at once, employers should assess whether employees can be brought back to work in stages. Such an assessment should include consideration of any applicable recall procedures and policies, including those that may be provided in a company handbook or a collective bargaining agreement for unionized employers. Additional considerations include making the return initially voluntary and ensuring non-discriminatory selection procedures.
- Be Prepared to Answer Benefits-related Questions – Returning employees may have questions about their benefits eligibility (particularly if they lost coverage under any plans while off work). Employers should be prepared to address questions on eligibility for health benefits, retirement, PTO/vacation, and any other benefits the employer offers.
- Prepare a Communication Notifying Employees of Their Return to Work – Employers should communicate to employees the desired date and time for return to work (addressing staggered arrival and departure expectations or new shifts as appropriate); new expectations or policies employees must know prior to their first shift back (e.g., temperature testing, self-acknowledgment of symptoms); and any PPE requirements employees must be prepared to comply with upon their return to work.
- Develop a Plan for Employees Who Refuse to Return to Work or Request Continued Telework – If employees refuse to return to work, employers should engage in a dialogue with employees to determine the basis for refusal, consider whether protected activity is implicated, and analyze whether leave or an accommodation may be required.
3. Post-Reopening Considerations
- Develop a Communication Plan for COVID-19-Related Updates to Employees – Consider, among other things, whether a weekly or bi-weekly update is appropriate to inform employees of any policy or procedural changes related to COVID-19 issues.
- Monitor the Workforce for Indicative Symptoms of COVID-19 – If your company has not already created one, ensure that you have a procedure in place for employees who present with or self-report COVID-19 symptoms or have tested positive.
- Determine Operational Ability if Absenteeism Spikes – Employers should be prepared to address increases in absenteeism, particularly if a second outbreak of COVID-19 occurs. One method for covering absenteeism could include cross-training employees on key positions.
- Consider Opportunities for Morale Engagement – Where appropriate, including based on financial circumstances, employers should try to create opportunities to improve employee morale, e.g., by providing casual attire days or lunch to employees.
As reflected by the above, the development of a workforce reentry plan raises many practical and legal considerations. Quarles & Brady is committed to assisting employers in creating a comprehensive and individualized reentry plan which considers compliance and risk issues and the unique aspects of an employer’s work environment. Additional information regarding workforce reentry will be provided during our upcoming webinar, "Open for Business? Navigating COVID-19's Impact on Reopening Businesses and Returning Employees to the Workplace", taking place on Wednesday, May 6, 2020.
If you have any questions about workforce reentry or the development of a reentry plan, please contact your local Quarles & Brady attorney or: