Employers Will Face New Challenges as the Country Returns to Work

Although there appears to be no clear indication of when America will return to work, employers should already be thinking critically about the challenges they will face when the country eventually reopens for business.  Indeed, the “new normal” will be very different from the workplaces we left in March of 2020, and it will be up to employers to adapt to the changes that must inevitably be made to ensure that the work environment remains safe and legally complaint.

Among the most important issues that employers will need to consider will be the following:

• Employers will need to assess whether “social distancing” guidelines will allow for in-person meetings and other gatherings of employees (either social or work-related). To curtail the risk of continuing COVID-19 infection, employers may need to implement staggered shifts, physical distancing between employees, or flexible meeting plans that include a virtual-appearance option.
• Employers will need to gauge the delivery of services in light of the fact that customers may not wish to associate with employees on the day operations resume. In fact, it could be many weeks or months until customers are willing to interact in person, so employers need to equip employees with the necessary tools to continue providing services by a secure or “contactless” means.
• Employers will need to determine whether they intend to bring back their entire workforce at the same time – which obviously increases the risk that an asymptomatic employee accidentally infects other (healthy) team members. A better plan for employers might be to bring back employees in groups or phases, which will allow the employer to monitor groups of employees for potential signs of infection.  If employees return to work in phases, employers will need to ensure that they select a non-discriminatory mechanism for determining which employees will return to work at particular points in time.
• Employers will need to ensure that any decisions made in the aftermath of “stay at home” orders do not discriminate against employees who have invoked any form of leave under the Families First Coronavirus Response Act (FFCRA).
• Employers will need to decide what to do with regard to employees who request to work from home or who refuse to return to work due to fears associated with COVID-19.
• Employers will need to select the restrictions they intend to impose on employees who claim they have “recovered” from COVID-19 at the time operations resume. In addition, employers will need to devise a process for dealing with situations in which an employee reports that another employee is suffering from COVID-19 or has associated with someone suffering from COVID-19.
• Employers will need to develop a protocol for advising their workforce of any new instances of COVID-19 infection, including a contact tracing procedure for advising those who may have come into contact with the employee who has fallen ill or tested positive for the virus.
• Employers will need to consider sanitation and hygiene in the workplace, particularly in light of new regulations from the Centers for Disease Control (CDC) and the Occupational Safety and Health Administration (OSHA) as the country returns to work. In addition to proximity guidelines and social distancing, such regulations are likely to include rules about hand washing and waste disposal, particularly in “high-touch” areas like equipment bays, biometric scanners, meeting spaces, restrooms, and elevators.  Employers may also need to set new policies regarding the number of employees that can congregate together in breakrooms, time clock lines and common areas.
• Employers will need to consider whether to limit access to third-party vendors to reduce the number of individuals who enter a particular work location. Examples of such third-party amenities include vending, meal delivery, package delivery, and custodial services.  Employers will also need to ensure that reception spaces, waiting areas, and loading docks are appropriately arranged to allow for social distancing among visitors and guests. 

The foregoing problems will be formidable, and will require employers to assess how to conduct business in the wake of new regulations and employee concerns.  If you need assistance with regard to any aspect of this process, please do not hesitate to reach out the Labor & Employment Group at Burke, Warren, MacKay & Serritella without delay.