Keeping Your Business Safe—and Legally Compliant—as You Reopen

 Keeping Your Business Safe—and Legally Compliant—as You Reopen

In recent months, many business leaders have been laser-focused on the financial health of their businesses. But as Texas continues to reopen the economy, leaders must also remain focused on the health and safety of their employees. This means taking steps to keep the workplace safe for everyone who enters it, which in turn reduces the employer’s potential liability down the road.

Here are five steps to aid in reopening your business as Texas gets back to work.

1. Keep It Clean

First off, get and keep the workplace clean. It’s wise to assign a team and a point person who can take the lead on keeping a clean work environment. They should begin by reviewing available resources and complete an assessment of the workplace and the hazards present. The below guidelines are mostly advisory but can be both useful in reducing the potential for spread of COVID-19 in your workplace and helpful in proving your business implemented these standards if necessary in the future.

2. Keep It Healthy

Once the workplace is clean and a plan is in place for keeping it that way, next look to decrease the likelihood of bringing infected people into the work environment. As most of us now know, infected persons—even asymptomatic ones—can spread COVID-19 by breathing, coughing, sneezing, or otherwise releasing droplets into the air and onto surfaces.

In April, the Equal Employment Opportunity Commission issued new guidance on the Americans with Disabilities Act, stating that employers “may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others.” For that reason, businesses are now allowed and even encouraged to take certain steps that would otherwise be advised against. The simplest way to reduce person-to-person spread is to encourage any employee experiencing COVID-19 symptoms to stay home. Additionally, employers may want to consider safeguards like reliable COVID-19 tests, requiring doctors’ notes certifying employees’ fitness to return to work, and screening for symptoms with questionnaires or temperature checks.

COVID-19 Testing

An employer may choose to administer COVID-19 tests for employees before they return to the workplace or even more frequently. This option may, however, be cost-prohibitive and time consuming and testing is certainly not required, especially where other safeguards may be sufficient.

Questionnaires

Before employees enter the workplace or come into contact with coworkers or customers, consider having them respond to a COVID-19 questionnaire. Depending on an employee’s responses, the company can determine whether an employee may report to work or should remain away from the workplace in order to quarantine or recover from the illness. Questions can include:

  1. Have you been diagnosed with COVID-19?
  2. Have you had close contact with any person that has been diagnosed with COVID-19?
  3. Have you had the following symptoms in the last 14 days?
  4. Fever or chills
  5. Cough
  6. Shortness of breath or difficulty breathing
  7. Fatigue
  8. Muscle or body aches
  9. Headache
  10. New loss of taste or smell
  11. Sore throat
  12. Congestion or runny nose
  13. Nausea or vomiting
  14. Diarrhea
  15. Have you returned from traveling internationally in the last 14 days?
  16. Has a healthcare provider or government official ordered or advised you to self-quarantine due to COVID-19 exposure?

Temperature Checks

Temperature checks are permissible under current EEOC and CDC guidance. When implementing such checks, consider the following:

  • If a trained medical professional is available, allow them to conduct the testing.
  • Use a forehead-scanning thermometer to reduce contact between the temperature taker and the employee.
  • Ensure that the temperature taker is equipped with personal protective equipment (PPE).

Social Distancing and PPE

Consider implementing policies encouraging continued social distancing and include examples of what this means in your workplace. This could mean not sharing offices, continuing meetings virtually even when employees are in the office, staggering workdays and work times, and discouraging carpooling to sites for work purposes. Also, encourage mask use in certain spaces and circumstances. Employers are permitted to require masks in the workplace; consider providing them and other PPE.

With all of the above safeguards, ensure that you are not violating local orders. For example, Dallas County does not allow an employer to require a negative COVID-19 test or a doctor’s note as a condition of returning to work. Also, be mindful of the Americans with Disabilities Act (ADA), which requires providing a reasonable accommodation where an employee has a disability unless doing so would be an undue hardship. This could mean providing PPE of a different material where there is an allergy, allowing for more frequent breaks where a person requires it based on their medical condition, or allowing a person to work from home. In any case, engage in a back-and-forth conversation—known as the “interactive process”—to determine the scope of their limitations and suggested accommodations.

3. Mind the Human Side

As your employees return to work, keep in mind that they too have experienced the global pandemic that took many lives, which may lead to fear and anxiety. Communicating the scope of the safeguards the company has implemented goes a long way in helping to alleviate their concerns.

Moreover, your employees’ lives are possibly still disrupted at home. They may have children out of school with limited childcare options; they may be dealing with a new or exacerbated disability; or they may have a spouse who is now out of work. Under the Families First Coronavirus Response Act (FFCRA), which applies to all employers with fewer than 500 employees but does not apply to furloughed employees, employees may be eligible for emergency leave to care for a child whose school or childcare provider is unavailable due to COVID-19-related reasons. When confronted with your employees’ requests in this regard, keep in mind that leave may be a potential solution, whether unpaid leave or paid leave under the FFCRA or other leave programs you may provide.

4. Document, Document, Document

Employers should be careful to document the entire process of returning employees to work, whether that’s rehiring a furloughed employee or bringing current employees back to the physical office. This documentation could be key in defending against potential litigation down the road, such as a tort liability for employee exposure or discrimination claims.

Some items you will want to fully document include:

  • Written offers to return to work and employees’ responses
  • Accommodation requests and proof that you engaged in the interactive process
  • Performance issues that support subsequent adverse employment actions
  • Analysis of hazards in the workplace and what you’ve done to safeguard against them

Also, as you document, ensure that medical records are kept separate from an employee’s general personnel file as required by the ADA.

5. Ask: “What Should Stick?”

Finally, I encourage Texas business leaders to consider what worked well through the first few months of the pandemic. There’s no need to strive to return to doing things exactly as you did before. In a lot of cases, some of the changes could stick around, increasing not only employee safety but also boosting employee morale and lowering costs.

Some of those changes might include:

  • Minimized travel. Have you found you can get by just as well with lower levels of employee travel?
  • Remote work. Have people been able to be productive and fulfilled working from home? Can they continue to do so, even if only some of the time?
  • Use of virtual calls and conferences. Has your team grown skilled at videoconferencing to the extent that it can be used to replace some in-person meetings going forward?

It’s safe to say that few of us have been through a workplace disruption as all-encompassing as the one we’ve seen in 2020. As we make our way toward a full recovery, use these guidelines to ensure that you’re keeping your potential liability down and your people safe.

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Abby Kotun

Abby Kotun

Based in Houston, Modinat “Abby” Kotun is an associate in the Labor and Employment Group of Reed Smith LLP. Abby is board certified in labor and employment law and represents clients in a wide variety of labor and employment matters, including general employment counseling; defense of discrimination charges and lawsuits; and trade secret, unfair competition, and wage and hour litigation.

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