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The Reopening Of America: An Employer's Guide For Navigating The New Work World During A Pandemic

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As the country continues to return to some sense of normalcy on a state-by-state basis as a result of COVID-19, employees and employers will soon find that the work environment they are accustomed to has dramatically changed, potentially for good. Employers will play an integral part in maintaining the safety of themselves, employees, customers, and the public in general. Employers must take into consideration and budget for procedures and systems that they never had to account for in the past. Some of these changes will be physically obvious while others will not be so visible, difficult to implement, and difficult to convey to employees and customers. Although it may seem as though the work world will revert back to its pre-COVID-19 level at some point in the future, employers must be prepared for the possibility that many of these changes and precautions currently being taken will be the new norm. It is imperative that employers adapt, or risk being left behind.

The Centers for Disease Controls and Prevention (CDC) has issued guidance to employers on responding to COVID-19 during the reopening of business. The U.S. Occupational Safety and Health Administration (OSHA) has also provided guidance as well. Business operation decisions should take into consideration the current levels of transmission in their specific communities and employers are encouraged to continue to monitor state, local, and federal guidance and communications.

The typical workplace environment will likely change in the following ways: safety in the workplace; remote working model; technological environment changes; and consumer rage.

SAFETY IN THE WORKPLACE

Although physical safety has always been a concern for employers in the past, employers will now have to develop plans to protect employees from COVID-19 and other future viruses. Employers are encouraged to devise policies to decrease the possibility of their employees or customers contracting COVID-19 once they reopen. There are essentially three main areas that employers should place emphasis on in implementing policies to promote a safe and clean workplace: (1) temperature checks/screenings for employees and potentially customers at the workplace; (2) social distancing measures; (3) and cleaning/sanitizing the workplace.

Screening of Employees or Clients

Employers should consider whether they will engage in temperature readings for employees and/or customers entering their facilities. There are several factors to consider when deciding if this is an adequate option for each employer. As most employers will not have the luxury of appointing a medical professional to administer screenings, more realistic options include having a designated employee administer the temperature checks or having employees self-administer testing at certain locations prior to entering the building. Employers should properly train any designated employees that perform testing not to run afoul of the Americans with Disabilities Act (ADA). Determinations on who is screened cannot be based on race, sex, country of origin, age, etc. That being said, the U.S. Equal Employment Opportunity Commission (EEOC) has indicated COVID-19 constitutes a direct threat such that employers may implement health screens such as temperature checks, health questionnaires, and actual testing. Moreover, these designated employees should also maintain social distancing, have a barrier or partition controls, or have personal protective equipment to ensure the safety of the screener and other employees.

In addition to the above, it is important to require employees that are sick to stay home.

Cleaning and Disinfecting the Workplace

Employers will have to take more drastic steps in cleaning and disinfecting the workplace. In addition to normal routine cleaning with soap and water, the EPA has compiled a list of disinfectants to use against COVID-19. The EPA has also compiled a list of approved alternative disinfectants if employers are unable to obtain any of the EPA-approved disinfectants. Employers that do not typically deal with alternative or commercial cleaners will have to properly educate themselves on their use. This may include having employees take precautions on proper skin and eye protection, ensuring adequate ventilation, avoiding mixing chemical products, and proper storage.

Although EPA cleaning guidelines may only be in place for a limited duration, customers and the public in general can expect some version of these requirements indefinitely.

Safe Behavioral Practices

Despite states’ continued phased reopening of businesses, social distancing is something that will continue to remain in place at least in the near future and quite possibly longer, especially given the fact that many states are experiencing massive increases in cases following reopening. Depending on the exact geographic location of the facility or the type of business the employer engages in, employers will have to implement protocols for maintaining safe distancing between customers and employees. In many cases, employers will have to reconfigure their spaces to ensure they are maintaining proper distancing. It is still recommended that employers keep employees and customers at least 6 feet apart at all times. As such, employers need to evaluate whether offices, break rooms, or other spaces need to be re-arranged to maintain safe distances.

In addition to social distancing, there are other strategies employers can use to ensure a safe workplace, including but not limited to:  

• Frequent washing of hands or use of hand sanitizer when soap and water is not available;

• Providing face cloth coverings for employees and maintaining an adequate supply of coverings for replacements;

• Reminding employees to avoid touching their eyes, nose, and mouth;

• Requesting that employees stay home when sick;

• Canceling non-essential travel or encouraging alternative commuting and telework;

• Considering split-shifts/staggered breaks or altered workstations;

• Limiting in-person gatherings to the extent possible and considering videoconferences;

• Posting social distancing markers using tape that denote 6 feet of spacing; and

• Limiting the sharing of materials/objects and discouraging the touching of commonly shared surfaces.

Potential Mandated Vaccinations

As potential vaccinations continue through clinical trials, the question has been raised whether a vaccination can be mandated, either by government, at some level, or by the private sector. Current polling suggests that more than 1 in 3 Americans say they will not get a COVID-19 vaccination today. With that being said, the federal government, and employers arguably have the authority to mandate the vaccination.  As outlined below, it is more likely that employers may mandate the vaccination as opposed to the government, with the latter taking a position of encouragement for the general public.

Generally speaking, the employer’s authority for such a mandate originates from the Occupational Safety & Health Administration (“OSHA”) and the Equal Employment Opportunity Commission (“EEOC”). In fact, OSHA has previously addressed a similar issue through its response to the H1N1 (“swine flu") outbreak in 2009. In that same year, OSHA issued a comment opinion to the Honorable Congresswoman Marcy Kaptur of Ohio, specifically addressing whether or not a constituent’s employer could mandate the acceptance of a swine flu shot with mandatory time off for refusal.

OSHA noted that “[u]nlike previous seasonal influenza viruses, this pandemic influenza virus disproportionately infects a wider age-range of people.”  OSHA further noted that employers were expected to perform a workplace risk assessment and encouraged employers to offer not only the seasonal vaccine but also the H1N1 vaccine.  Continuing, the opinion letter noted that while OSHA does not specifically require employees to take the vaccines, an employer may do so. Employers should be aware of potential whistleblower rights in situations where employees refuse vaccinations because of a reasonable belief that a personal medical condition creates a real danger of serious illness or death (such as a serious reaction to the vaccine).

The EEOC also provided guidance during the 2009 H1N1 pandemic through its Pandemic Preparedness Plan. The EEOC provides guidance to employers covered by the Americans With Disabilities Act ("ADA") and Title VII of the Civil Rights Act of 1964 ("Title VII").  In 2009, the EEOC noted that, generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring same. Further, the EEOC noted that an employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him or her from taking the vaccine.  Therefore, such an exemption was viewed as a reasonable accommodation barring undue hardship to the employer.  Similarly, the EEOC noted that pursuant to Title VII, an employee may assert a reasonable accommodation if the employee's sincerely held religious belief, practice or observance prevents him from taking the vaccine, unless such an accommodation would result in an undue hardship to the employer (which is a lower standard than under the ADA).

Continuing, the EEOC has issued additional guidance earlier this year via an updated Pandemic Preparedness Plan. On March 21, 2020, the EEOC's most recent guidance notes that employers are permitted to implement more extensive medical inquiries and controls as a result of COVID-19 as same is a “direct threat" that “cannot be eliminated or reduced by reasonable accommodation." The EEOC guidance provides that, during the pandemic, employers may, among other things:

• Ask such employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.

• Measure an employee's body temperature.

• Direct that an employee who becomes ill with symptoms of COVID-19 should leave the workplace.

• Require a doctor’s note certifying their fitness for duty.

However, the revised guidance was issued prior to the availability of a COVID-19 vaccine and did not specifically address mandated vaccinations. This guidance may be further revised as we near a fully implemented vaccine, which may occur as early as the end of 2020. Notwithstanding the above, in practicality, the "direct threat" references make it difficult for an employee to refuse employer-mandated vacation on grounds of the ADA or Title VII with the expectation to keep their jobs.

The issue is further muddied by state requirements. Employers should look not only to federal law but also state law, as the latter typically raises the employer obligations above federal minimum mandates. Many states already mandate vaccines for children and attendance of school (in fact all 50 states have some vaccination requirements), with some exemption (which has become known as the Anti-Vax movement). Moreover, many states require employers within certain sectors to undergo vaccination for Hepatitis-B, Measles, Mumps, Rubella (MMR), Pertussis, Pneumococcal disease, and the like. It is possible, if not expected, that states will require certain sectors (such as healthcare and other front-line services) to mandate the COVID-19 vaccine in a similar manner that many have already mandated testing for same.

In summary, absent additional guidance from the EEOC, employers may want to begin drafting a legally compliant vaccination policy in preparation for a vaccine that is considered safe for the general public.  While the policy should certainly consider the issues outlined above, the employer should likewise be mindful of a policy that is not overreaching and in violation of the ADA and Title VII.

WORK FROM HOME/REMOTE WORK MODEL

In addition to safety changes, one of the major implications of COVID-19 might be the change in the traditional workplace model for many businesses. A large portion of the country has already experienced working from home since many of the COVID-19 measures were put in place back in March. Companies all over the country will be forced to reconsider the traditional workplace model and adopt some form of the work-from-home or remote-work models moving forward.

There are numerous reasons that employers may choose to move forward with having their employees work from home or remotely instead of in an office setting.

First, the main reason for many employers transitioning to the remote work model is the reduction in costs from maintaining the traditional work model. Less money spent on real estate, office space, overhead costs, parking, etc., means more profits for employers in many cases.  

Moreover, many employers have already begun reaping the benefits of increased productivity from employees that work from home or in some remote fashion. A California-based company recently found a 47% increase in worker productivity with employees working from home.  The University of Montreal conducted a study that also found teleworking is improving productivity.

In addition to the above, employers are facing more pressure to allow employees to work remotely after employees have experienced the benefits of working in this fashion. In many cases, working remotely provides employees with a better work-life balance and the ability to set a schedule that better suits their capacities. Employers can expect more employees to request to work from home in the future.

Finally, given the ever-expanding travel landscape and connection of people across the globe, experts continue to warn of similar virus outbreaks in the future that can affect large numbers of the population. Transitioning to remote work models or at least having partial remote work policies in place to deal with future quarantining will be imperative for the survival of companies.

TECHNOLOGICAL ENVIRONMENT

To survive in this new landscape, employers must implement technological changes to deal with evolving work models. In addition to physically altering the layout of offices and work floors to maintain distancing requirements, companies’ networks will also need to be elevated.

For many employers, gone will be the days of mass meetings. Instead, meetings, conferences, and collaborations can all be done via conferencing tools such as Zoom, Skype, or WebEx. In addition to providing employers the ability to adhere to social distancing requirements, these methods may also save money, time, and productivity for employers. Employers might be able to shed large office buildings, meeting spaces, and conference rooms to conduct conferences or to collaborate. Also, employees, and in some instances, clients, can avoid travel time and complications for meetings. The future of conferencing and meetings will be to conduct same from a distance and virtually in many instances.

These new technological changes will undoubtedly be accompanied by a bevy of new security risks. In this new climate, employers must ensure they have adequate security measures in place to combat security threats and maintain a successful business. This will obviously result in added costs that were not previously accounted for by employers in ensuring that data and personal information are protected. Employers will also have to engage in ongoing education of their employees to avoid data breaches, phishing attempts, cyber threats, etc.

CUSTOMER/CLIENT RAGE

Another issue that employers are currently experiencing and must anticipate is “retail rage” or consumer rage. Videos have been surfacing on social media platforms and news sites revealing customers becoming argumentative, and at times physical, with employers and other customers as a result of COVID-19. The majority of these incidents are a result of customers being informed that they must wear masks to enter facilities or abide by other guidelines recommended for the public’s safety. However, people are frustrated after being confined in their own homes for months.

Employees may now have to deal with daily anger, insults, threats, and physical actions from customers. As a result, employers should implement policies and train employees to properly respond to and handle such customers. In more extreme situations, employers may also have to resort to contacting authorities to deal with especially unruly customers. Regardless, it is important for employers to consider how they will respond to the increased frequency of “retail rage” to protect other customers and their employees.

CONCLUSION

Ultimately, employers will likely be faced with a very different work environment as the country continues to open for business. Employers will need to adapt to this new environment by implementing policy and culture changes. Employers must be proactive in managing the coronavirus pandemic and the associated employment. Employers are encouraged to consult with an experienced attorney to discuss the potential options available at this time and in the future.