Legal Blogs and Updates

As businesses begin planning the reopening of their offices and operations, employers must be mindful that the COVID-19 pandemic will continue to have a serious impact both on their business and employees. The “return to work” will not necessarily be a return to normalcy, at least not for the foreseeable future. While many states are still in the process of determining when and how to reopen the economy, there are a few simple yet crucial steps employers can take now to update policies and prepare their office and staff for the new way of doing business. Following are those policies that we see as being of immediate importance to employers.

Phased-In Return to Work Policy

Initially, employers should consider which employees, departments, groups or units should return first based on business needs, compliance with ongoing restrictions regarding limitations of operations to “essential business,” and compliance with health precautions. The selection process may take into consideration which roles are more conducive to remote work vs. which roles require more on-site involvement. In other words, selections should be made for legitimate business reasons and documented in case it later needs to be demonstrated that selections were made for non-discriminatory reasons. Of course, any plan should also account for the office layout in order to facilitate social distancing. Employers may also wish to consider staggered scheduling and/or alternating days for certain groups to reduce the number of employees on site.

To that end, employers will likely need a flexible “telecommuting” policy that enables employees to continue working remotely after businesses reopen. Telecommuting schedules may vary based upon business and positional needs. Some employees may even request to continue working from home because they are in a “high-risk” category for severe illness from COVID-19, i.e., persons aged 65 or older, or who are immunocompromised, asthmatic, etc. Employers should consult with the EEOC Guidance’s on handling such requests for a “reasonable accommodation” in the form of a flexible telecommuting arrangement. 

In-Office COVID-19 “Containment Policies”

Employers should issue a COVID-19 “Containment Policy” consistent with the CDC Interim Guidelines for Businesses to promote infection control and prevention strategies. The policy should be communicated electronically and posted at workstations and common areas, thereby reminding employees of the importance of routine handwashing, cleaning and disinfecting of individual work stations, and maintaining social distancing. Employers should facilitate compliance with the Containment Policy by providing soap, hand sanitizer, and cleaning supplies throughout the work place. Social distancing policies can be promoted through reconfigured furniture arrangements and “maximum occupancy” signs in meeting rooms and other common areas.

As of the date of this Update, an employer “Containment Policy” may either recommend or require masks and face coverings. The CDC’s guidance recommends wearing cloth face coverings in public settings where other social distancing measures are difficult to maintain. However, employers should continue to monitor any state or local developments that may impose the use of masks in the workplace as a requirement. Note that cloth face coverings being recommended by the CDC are not necessarily surgical masks or more robust health-industry equipment.

Guidelines on “How Work is Done”

Employers may wish to issue other practical business policies, such as requiring staff to limit in-person meetings or conferences, and to conduct meetings virtually as much as possible. Employees should also be urged to use new forms of greeting to avoid handshakes, hugs and other forms of physical contact that have traditionally served as social norms.

Employers may also want to consider whether they will allow employees to travel to and/or attend off-site events hosted by third parties, such as customers or clients, and other travel. An updated travel policy should be adopted to limit employees to only essential travel. The policy may provide examples of which sorts of business trips are considered essential, and require that employees obtain approval for travel subject to demonstrated business necessity. Employers should continue to monitor the CDC and other governmental guidance regarding when travel restrictions may be lifted.

Employers may also wish to prohibit visitors or at least limit visitor access to the workplace. Any such policy should be communicated by email and other means to regular visitors, suppliers and delivery companies, and shall explain any containment practices that all visitors must follow while on site. Signage and other instructions should be posted for visitors to understand the containment practices.

Health Screening Policies

Our firm issued a prior Update explaining that, per EEOC guidance, employers may require COVID-19 testing, administer on-site temperature checks, and make other health-related inquiries to employees, before allowing employees to return to the workplace.

To the extent employers choose to implement health screening measures, a written policy should be adopted that details what employees can expect in terms of how and where screening will take place, as well as the confidentiality protections of test results and implications of positive results. The policy should also communicate the consequences of refusing to take a test, which could include precluding an employee from working on-site and/or barring the employee from work. Non-exempt personnel who refuse to submit to health screening may be barred from work without pay. However, the policy should advise employees to notify the employer if they believe they qualify for a reasonable accommodation under the ADA or religious exemption under the Civil Rights Act. In such case, the employer will need to engage in further dialogue with the employee about their situation and any appropriate accommodations that can be made.

Flexible Leave/PTO Policies

Employer sick leave policies should be updated to reflect the increased eligibility authorized by the Federal Emergency Paid Sick Leave Act (EPSLA), as well as any applicable State leave laws that have been enacted in the wake of COVID-19. Under EPSLA, eligible employees may be entitled to up to 12 weeks of paid sick leave if they (i) become ill with COVID-19, (ii) are placed on an order of quarantine, (iii) require time off to care for an immediate family member who is ill with COVID-19, or (iv) require time off to care for a dependent child whose school is closed due to COVID-19.

The revised leave policy should explain the new laws, the eligibility requirements for COVID-19-related leave, the duration of such leave and how it may be used intermittently, the amount of compensation and continued access to other benefits, and the procedure for requesting leave.

Employers may also wish to adopt more flexible sick-leave/PTO policies to account for employees staying home for reasons that might not necessarily be covered by the EPSLA. Such policies should account for how COVID-19-related absences will be treated, as well as employees’ entitlements to wages and any paid leave rights under new federal and state laws.

*This Update was prepared based on the relevant legal authority and guidance available as of May 18, 2020. We are continuing to monitor for state and local jurisdictional requirements that may be imposed in on businesses in the future.

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