As states begin to their introduce plans to reopen their economies, employers are understandably anxious about bringing employees back to the physical workplace. While returning to work will look different for each employer, there are several global considerations that all employers should keep in mind.
State and local plans
Each state will face its own unique challenges in the return to work. In addition to the federal requirements discussed below, businesses need to understand state guidance when devising reopening plans for each state in which they operate. For example, Massachusetts, New York, New Hampshire, Vermont, and Rhode Island have all issued phased plans for reopening that should be consulted if a business employs individuals in these locations. Additionally, the City of Boston has different timelines for certain businesses, therefore employers should review city and town orders where applicable.
Massachusetts reopening plan
On May 18, Governor Baker outlined the plan for re-opening Massachusetts in a phased approach. Phase 1 permits for the limited reopening of certain businesses in the Commonwealth and will last for a minimum of three weeks. Detailed information concerning the phased reopening can be found at on the state website and in our prior coverage.
In additional to jurisdiction-specific guidance, businesses should also consider guidelines issued by the Centers for Disease Control (CDC), the Occupational Safety and Health Administration (OSHA) and the Equal Employment Opportunity Commission (EEOC) concerning their return to work plans.
CDC guidance for all workplaces
The CDC has advised employers to respond in a way that takes into account the level of disease transmission in their communities and revise their business response plans as needed. Additionally, the CDC has also emphasized that it is critically important that employers adhere to their state and local orders regarding reopening.
What does the CDC recommend?
The CDC has generally advised employers to:
The CDC is regularly updating its guidance as more information becomes known about the virus, how it spreads, and how it affects the human body. Employers should regularly consult the CDC website for updates.
What does OSHA Recommend?
Businesses must also consider their obligations under the rules set forth by the Occupational Safety and Health Administration (OSHA). While there are many different OSHA regulations, the key consideration for most employers will be the OSHA General Duty Clause. The General Duty Clause requires employers to provide a workplace that is free from recognized hazards that could cause serious injury or death. In short, employers must provide a safe place for their employees to work.
In connection with COVID-19, OSHA has identified the following specific steps that employers should take to improve workplace safety. Employers should review these guidelines and implement measures to protect employees and avoid citations and fines by OSHA.
What is an employer’s exposure for failing to follow OSHA rules?
When an employer fails to provide a safe workplace, it can result in citations and penalties in the thousands of dollars. Employers could be cited for COVID-19-related issues such as failing to provide adequate personal protective equipment (PPE); or failing to implement effective measures (for example, physical distancing or enhanced cleaning) to control the spread of the virus.
Employers can expect OSHA to actively enforce the General Duty Clause as employees return to the physical workplace in the coming weeks and months. To minimize risk – and ensure the safety of employees – employers should thoroughly assess the hazards posed by their particular workplace, consider the OSHA guidance, and devise a comprehensive plan for bringing employees back to work.
What guidance has the EEOC issued concerning the return to work?
In devising a return to work plan, many employers are concerned about protecting those employees who may be more susceptible to negative outcomes with respect to COVID-19, namely those over the age of 65 and/or those with certain underlying health conditions. While a knee-jerk reaction might be to prohibit those employees from returning to the workplace, the EEOC cautions employers that their exclusion may run afoul of the Americans with Disabilities Act (ADA). The EEOC has issued updated guidance on how to navigate bringing back employees in a high-risk category.
In its guidance, the EEOC relies on the CDC guidelines concerning individuals who are high-risk. The CDC has advised that COVID-19 presents a higher risk for adults over the age of 65 and those with serious underlying medical conditions, identified by the CDC as chronic lung disease, severe asthma, serious heart conditions, immunocompromised systems, severe obesity (BMI 40 or higher), chronic kidney disease, and liver disease. For these individuals, the CDC encourages employers to “support and encourage options to telework if available” and offer such workers duties that “minimize their contact with customers and other employees.”
But how does an employer identify its vulnerable population? And what if the employer already knows of an underlying condition (perhaps because the employee had disclosed it for a prior accommodation request)?
The EEOC guidance is clear. First, as with any disability, employers may not ask an employee if they have a medical condition. Rather, the process for determining if an employee needs a reasonable accommodation as a result of an underlying condition is the same during the pandemic as it would be for any disability accommodation request – the employee must initiate the process. However, the EEOC has clarified that employers may encourage employees to notify them in advance of a return to work if they may need an accommodation. To that end, employers should consider issuing a communication to their entire workforce that invites employees to bring specific concerns to the appropriate Human Resources contact person (or other person charged with addressing return to work issues). Once that discussion is initiated, employers can rely on their regular practices for engaging in the interactive process under the ADA.
In the case where the employer may already know that an individual is in a high-risk category, the EEOC advises that employers cannot prospectively bar anyone in a high-risk category from returning to the workplace (or take any other adverse action) solely because the employee is in an at-risk category. Rather, the employer would only be able to prohibit an employee from returning to work if the employee’s disability poses a “direct threat” to his or her health that cannot be eliminated or reduced by a reasonable accommodation.
The EEOC also clarified that the direct threat assessment cannot be based only on the fact that the employee has a condition that appears on the CDC’s high-risk list for COVID-19. Instead, there must be an individualized assessment, based on “reasonable medical judgment about this employee’s disability”– not the disability in general. Moreover, even if an employer undertakes the individualized assessment and determines a direct threat exists, the employer still must consider whether the threat can be mitigated through an accommodation (for example, a temporary leave, working remotely, a temporary job transfer).
Employers should be aware that the direct threat standard is very high and difficult to meet – there are likely to be very few “direct threats” that cannot be mitigated through telework or a temporary leave in the eyes of the EEOC.
As always, employers are encouraged to engage in the interactive process with their employees concerning reasonable accommodations, and all employers are urged to promote a telework options where possible. The updated EEOC guidance can be found here.
Employers face significant challenges in mitigating the spread of COVID-19, as states prepare to re-open. Taking precautions recommended by local, state and federal governments and agencies can help limit exposure to the disease, aid in protecting employees’ health and may potentially limit employers’ legal liability.