Reopening During COVID-19: Questions Employers Must Consider before Bringing Employees Back to WorkMay 1, 2020
Employers across the country, both those that have been forced to close by state or local stay-at-home orders and those “essential” employers who have transitioned many employees to remote work, are eager to bring their employees back. Yet, COVID-19 workplace concerns are not going to go away overnight simply because a state or local government relaxes restrictions. Employers are once again left to balance economic and operational imperatives against potential concerns and risks. Although every employer will have to grapple with myriad issues unique to its particular circumstances, there are many practical questions that must be addressed by all employers, across industries and across the country. This alert identifies the major threshold questions all employers should consider, and suggests a framework for working through them and the secondary issues that will inevitably arise.
Can you return your personnel to work in accordance with the law?
Many employers, understandably, want to return to normal operations as soon as possible. The first question, therefore, is whether that is even possible. Although this may appear to be fairly simple, what is permitted by state and local law may be less than clear, and news headlines should not be treated as fact. You must first have a clear understanding of how the law applies to your operations. Also, please consider that local limitations across the country are often more restrictive than state law, and border states – like Missouri and Illinois – often have different rules that you may need to consider as employees travel for work across state lines.
Should you bring employees back to work now?
The next issue follows logically. Consider carefully why you might decide to bring your employees back to the workplace at this time. In these challenging times, just because you can do so does not necessarily mean you should do so. Consider these questions as you decide next steps:
- Has your business been functioning adequately without all employees on site?
- Can you continue to function as you are for the coming weeks/months?
- Does it make sense to move incrementally and to see how things play out over the coming days or weeks?
- Do you have work for your employees to do at this point in time?
- Should you bring employees back gradually or in stages?
- Will your employees be eager to return now, particularly in light of health concerns and the availability of enhanced unemployment benefits?
- Are your concerns about perceived health risks of employees greater than the ability of your business to function in the status quo? If not, why not?
If you can and think you should return your employees to work, what restrictions still affect your operations and apply in your workplace?
Once an employer has worked through the first two decision points, it must, of course, return employees in a legally permissible way. Often, there is not an easy answer. Restrictions and guidance are not always crystal clear and change periodically. Having a detailed understanding of the applicable requirements and guidance on returning to work is critical. Be sure to consider resources available from the CDC and OSHA, and plan how to comply with ongoing social distancing requirements. A city or county may have requirements for employees working on site (for example, St. Louis City Order). And, as always, you must make decisions about whom to return to work, and when, in a nondiscriminatory manner.
What should your workforce look like when you return?
Employers should pay particular attention to their own experiences from the quarantine/work at home environment, and consider making beneficial organizational changes. Many employers likely have seen their employees working differently, even for this short period of time, and no longer need a workforce as large or configured as before. The nutshell is that this is a key time to assess and reassess your workforce, and move forward strategically.
- What have you learned from the recent experience/new normal regarding your real personnel needs and what those might look like in the coming months/years?
- Who among your employees is truly necessary and contributing to expectations?
- Are there organizational changes that can or should be made to make your organization better?
- Do you have too many employees?
- Do you need more? Should you be looking to hire new employees now? If so, what types of employees are you looking to hire, and how will that hiring proceed under the circumstances?
- How will you implement these decisions, and then how will you communicate these strategic changes to your employees?
What will be the “Standard of Care” for your employees upon return?
After working through this analysis, employers returning their employees to work should next consider what safeguards to put in place to make sure that they are ready for reintroducing employees to the workforce. Many more questions arise here, all of which are dependent on the employer’s particular working environment:
- Should you have face coverings/masks for your employees? If so, why? Do you have the right masks? Can you obtain enough of them? How will you deploy masks and ensure enforcement of any requirement to wear them?
- What health screening should you employ? Health certifications? Temperature testing? Can you obtain enough accurate thermometers? Who will take the temperatures? Is there a technological solution? Does taking temperatures increase or decrease risk? What privacy considerations will apply to the screenings taken?
- Have you planned for compliance with continued social distancing obligations for your employees and others who will enter your facilities?
- What are your procedures if an employee contracts the virus or is exposed?
- Given the uncertain circumstances, do you have a plan in place for continued, safe operations in the case of an uptick in employee absenteeism?
- Who will continue to monitor the applicable guidance and ensure that your safeguards are keeping up with the shifting “Standard of Care” during these evolving circumstances?
Ultimately, each employer must determine when and how it wants to try to return to a form of pre-pandemic normalcy with respect to its workforce. These questions should be reviewed very carefully. You may be surprised by your answers. Even if you do not change your view, it is worth the exercise. We stand ready to help our clients work through these challenging issues the best way possible.