Employer’s Guide for Returning to the Workplace

As the U.S. economy reopens in the coming weeks and months, employers are faced with the challenge of bringing employees back to work to a workplace that is drastically different from the one that existed just weeks ago. While states and cities will have unique requirements and conditions with which employers must comply, they intend to rely on, in large part, the constantly evolving guidance provided by the Centers for Disease Control (CDC), Occupational Safety and Health Administration (OSHA), and the Equal Employment Opportunity Commission (EEOC). Consequently, it will continue to be crucial for employers to comply with the most recent guidance from the CDC, OSHA, public health agencies, and the EEOC as they bring employees back to work and re-open businesses.

Below is a general overview of current guidance from the EEOC, OSHA and CDC concerning workplace safety and the required or recommended preventive and corrective measures that employers must consider before allowing employees to return to offices and other workplaces. The overview is followed by a summary of the applicable return-to-work plans issued by the state of Tennessee and the city of Nashville. The final section of this update sets forth some frequently asked questions regarding the return of employees to the workplace in the era of COVID-19. Keep in mind that employers should consult legal counsel to ensure that their return to work plans are tailored to fit their specific work environments and employees and satisfy the applicable legal requirements.

The EEOC and COVID-19

The EEOC has stated that the non-discrimination laws that it enforces (e.g., the Americans with Disabilities Act (ADA)) should not interfere with or prevent employers from following the guidance and suggestions from the CDC and state and local public health agencies. The EEOC has further stated: “Employers should remember that guidance from public health authorities is likely to change as the COVID-19 pandemic evolves. Therefore, employers should continue to follow the most current information on maintaining workplace safety.”

However, the EEOC has issued a significant amount of guidance for the interpretation and enforcement of the ADA and the Rehabilitation Act in light of COVID-19.

Below, we’ve summarized some of the significant points made by the EEOC in its guidance:

1. In light of the pandemic, employers may ask employees about virus-related symptoms and may require employees to submit to temperature testing. Employers may also require employees to report a COVID-19 diagnosis to the employer.
2. Under the current circumstances, employers may choose to administer COVID-19 testing to employees before they enter the workplace “because an individual with the virus will pose a direct threat to the health of others.” Consistent with the ADA standard, employers should ensure that the tests are accurate and reliable. For example, employers may review guidance from the U.S. Food and Drug Administration (FDA) about what may or may not be considered safe and accurate testing, as well as guidance from the CDC or other public health authorities. Keep in mind that testing is rapidly changing, so employers will want to check for updates regarding the efficacy of any testing mechanism that they choose to use. Employers may wish to consider the incidence of false-positives or false-negatives associated with a particular test. Finally, note that accurate testing only reveals if the virus is currently present; a negative test does not mean the employee will not acquire the virus later. All tests that have received an authorized Emergency Use Authorization (EUA) from the FDA, including any authorizations for home collection of a specimen, can be found on the FDA’s Emergency Use Authorizations
3. Employers may require employees with COVID-19 to leave the workplace. Employers may also require that the employee present medical certification proving fitness for duty before returning to work.
4. Employers may delay start dates and/or withdraw job offers if an applicant tests positive for COVID-19 and/or has COVID-19 symptoms. The job offer should only be withdrawn if the employer needs the employee to start work immediately.

OSHA Guidance on Preparing the Workplace

OSHA requires employers to comply with existing safety and health standards and regulations promulgated by OSHA or by a state with an OSHA-approved state plan. In addition, the Act’s General Duty Clause, Section 5(a)(1), requires employers to provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm.

OSHA recently issued a thorough set of recommendations and guidelines for employers to consult when preparing workplaces for the effects of COVID-19. In the introduction, OSHA notes that the guidelines are advisory except to the extent that any such guideline refers to or summarizes existing OSHA standards and requirements.

Given OSHA’s existing requirements and recent guidance, employers should consult the CDC recommendations (summarized here) for returning employees to work and should also consider implementing additional protective measures in the workplace, such as:

1. Require employees to practice social distancing at work (e.g., staying at least six feet apart, limiting the number of occupants in offices and/or elevators, requiring office doors to remain closed when occupied, closing lunch and break areas, restricting occupancy and spacing, etc.).
2. Staggered arrival and departure times and/or work hours.
3. Closing certain stalls/urinals in the restroom to create adequate distance between individuals.
4. Limit one person to a vehicle, if possible.
5. Install high-efficiency filters and increase ventilation rates in the workplace.
6. Designate one person to clock employees in and out of work or record their arrival and departure times if clocking in would otherwise require employees to be in close contact with each other or to touch the same equipment.
7. Prohibit sharing of headsets, refrigerators, microwaves, computers, tools, etc.
8. Prop open doors to reduce touching of handles; provide no-touch trash cans, soap dispensers and hand sanitizer dispensers.
9. Install glass or plexiglass barriers where people have to meet to talk and exchange documents or materials (i.e., at secretarial work stations, customer service desks, etc.).
10. Perform daily health checks.
11. Encourage use of face masks, gloves, etc.
12. Utilize virtual instead of in-person team meetings.

New COVID-19 Poster from OSHA

OSHA has issued a new poster listing steps all workplaces can take to reduce the risk of exposure to coronavirus. The new poster is available for download in English or Spanish. The poster highlights 10 infection prevention measures every employer can implement to protect workers’ safety and health during the coronavirus pandemic, including encouraging sick workers to stay home; establishing flexible worksites and staggered work shifts; discouraging workers from using other workers’ phones, desks and other work equipment; and using Environmental Protection Agency-approved cleaning chemicals with label claims against the coronavirus.

While posting this poster is not mandatory, it may assist the employer in showing that it took good-faith steps to comply with OSHA’s workplace safety requirements (as discussed further below).

Good Faith Efforts to Comply with OSHA Standards

In guidance issued on April 16, OSHA stated that it will evaluate whether an employer made good faith efforts to comply with applicable OSHA standards by thoroughly exploring all options to comply. An employer should be able to demonstrate a good faith attempt to meet the applicable requirements as soon as possible following the re-opening of the workplace. Where the employer cannot demonstrate its good faith efforts to comply, a citation may be issued. Note further that on April 13, OSHA issued an enforcement plan, emphasizing that the most current CDC guidance should be consulted in assessing potential workplace hazards and evaluating the adequacy of an employer’s protective measures for workers. This further underlines the importance of an employer staying up-to-date on guidance issued by OSHA, the EEOC and the CDC, along with that of state and local governments and public health agencies.

Employer’s Duty to Record Cases of Work-Related COVID-19

On May 26, 2020, OSHA issued new guidance regarding an employer’s obligation to record all COVID-19 diagnoses among workers if the illness is “work-related;” specifically, if all of the following requirements are met:

• The case is a confirmed case of COVID-19, as defined by the CDC.
• The case is work-related, as defined by 29 CFR § 1904.5 (if exposure in the work environment either caused or contributed to the illness or significantly aggravated a pre-existing injury or illness).
• The case involves one or more of the recording criteria set forth in 29 CFR § 1904.7 (e.g., medical treatment, days away from work).

OSHA now requires all but small (ten employees or less) and low hazard industry employers to make a reasonable and good faith inquiry into whether any COVID-19 illness contracted by an employee was more likely than not contracted at work.  OSHA has set forth factors to be used when determining whether an employer has complied with its obligation to make a reasonable and good faith inquiry and determination of work-relatedness.  If after conducting a reasonable and good faith inquiry using the factors set forth by OSHA, the employer determines it is “more likely than not” that a workplace exposure played a causal role in the employee’s COVID-19 illness, the employer is obligated to record that illness in compliance with OSHA’s recordkeeping requirements.

Click here for our detailed summary of OSHA’s guidance, including the factors to be used when conducting the required inquiry of whether a COVID-19 diagnosis is “work-related.”

CDC Guidance on Workplace Health and Safety

The CDC has issued a significant amount of guidance regarding how businesses and employers should respond to the pandemic. Some key points concerning workplace safety and cleaning and disinfecting are as follows:

1. If an employee was present at the job site within 48 hours of testing positive, employers should follow the CDC’s cleaning and disinfecting guidelines. Cleaning staff should clean and disinfect all areas used by the ill person, especially frequently touched surfaces.
2. If it has been more than seven days since the person who is sick visited or used the facility, additional cleaning and disinfection are not necessary.
3. For electronics – such as tablets, touch screens, keyboards, remote controls, and ATMs – consider using wipeable covers. If there are no manufacturer’s instructions for cleaning and disinfecting electronics, use alcohol-based wipes or sprays containing at least 70% alcohol and dry the surfaces thoroughly.
4. Employers should develop policies for worker protection and provide training to all cleaning staff on-site before assigning cleaning tasks (including when to use personal protective equipment (PPE); what PPE is necessary; how to properly put on, use, and take off PPE; and how to properly dispose of PPE).
5. Ensure workers are trained on the hazards of the cleaning chemicals used in the workplace per OSHA’s Hazard Communication Standards.
6. Comply with OSHA’s standards on bloodborne pathogens, including proper disposal of regulated waste and PPE.
7. Employers should be using policies and procedures, engineering controls and PPE to reduce the spread of the virus in the workplace.
8. Employers should engage in a workplace hazard assessment to determine COVID-19 transmission risks in the workplace.

More detailed information and guidance from the CDC can be found using the links below:

• Interim Guidance for Business and Employers (Plan, Prepare and Respond to COVID-19).
• Prepare your Small Business and Employees for the Effects of COVID-19.
• Community Mitigation Framework.
• Cleaning and Disinfecting Your Facility.
• Implementing Safety Practices for Critical Infrastructure Workers Who May Have Had Exposure to a Person with Suspected or Confirmed COVID-19.
• Guidance for Institutes of Higher Education.

If you have questions about considerations for employers for crafting a return plan to the workplace, please contact one of the authors. Content from this resource was included in the following articles:

• “Back-to-Work Protocol for Manufacturers Post-COVID-19,” Industry Week (May 4, 2020)
• “What Employers Need to Do to Re-Open Post-COVID-19,” EHS Today (May 4,2020)
• “Employer’s Guide for Returning to the Workplace,” ExecuTeam blog (May 14, 2020)
• “Employer’s Guide for Returning to the Workplace,” HR Insights and Labor & Industrial Insights (May 20, 2020)