Coming Back to Work: The Careful COVID-19 "New Normal"

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Time to re-open?  Business owners, houses of worship, and other nonprofit leaders are waking up daily to new announcements about gradual re-openings in this next coronavirus phase of trial-and-error efforts.  Given significant concerns to be balanced as well as evolving medical implications of COVID-19, how should employers resume in-person work practices?

This question may seem daunting and implicates numerous ancillary matters. For example, may employers require their employees to return physically to work?  If so, how should (or must) work arrangements change? What safety protocols may employers require of employees?  What other safety measures should employers take? And what about employee privacy concerns, especially for sensitive health information?  Could employers face liability for safety violations, sick employees, and privacy violations?  Here are some common-ground recommendations and legal considerations for addressing these questions.

Use Careful Judgment

Nonprofit leaders owe a fiduciary duty of due care. In the context of COVID-19, this means they should be as mindful of COVID-19-related employment matters as they would be for any other safety-related issue. The ordinary legal standard is generally known as “business judgment rule,” that is, what would an objectively reasonable businessperson do in a similar situation?

To determine what may be objectively reasonable, employers may look to the workplace safety standards set by the Occupational Safety and Health Administration (OSHA), and the “best practices” guidelines for minimizing the risk of coronavirus transmission in the workplace, issued by the Centers for Disease Control (CDC). In additional practical terms, nonprofits should be prepared to proceed with caution and flexibility, with safety considerations and risk management of paramount importance.  The strategy for reopening will likely look much different for each organization, depending on its type, nature of services, and location.

Use Careful Safety Protocols

The available guidance thus far strongly warrants that employers observe — to the greatest extent possible — infection control practices such as social distancing, regular handwashing, and other hygiene and safety measures.  Here are some key safety protocols:

  1. Continue with telework/remote options, when feasible. Depending on work location and type of work activities, teleworking or remote working may still be the best option – especially for workers who would otherwise need to take public transportation or high-risk workers (e.g., those with respiratory conditions, the elderly, pregnant persons).  If any employees express hesitation or fear about returning physically to work, address their concerns individually and determine if teleworking may be best, under the circumstances.
  2. Minimize the number of staff, visitors, and program participants in the workplace. Consistent with the above recommendation, employers may continue making telework available, particularly to help reduce the number of people in the workplace.  Additionally, employers should encourage phone calls and videoconferencing in lieu of in-person meetings to the extent feasible, again depending on specific circumstances.  Employers may also consider rotating staff between telework and in-office status or staggering employee schedules.
  3. Develop and maintain meaningful social distancing standards. In addition to the above measures, employers should determine the maximum number of employees that can safely occupy a workplace and so limit occupancy.   Evaluate activities that cause staff to aggregate together such as daily meetings or informal gatherings in breakrooms; avoid or limit those activities entirely.  If the workplace allows for it, develop one-way foot traffic patterns.
  4. Readjust offices and workstation spacing. To minimize the risk of spreading infection among staff in the office, employers should require employees to conduct their work while maintaining the six-foot social distancing standard. (This equates to nine square feet per person.)  This safety measure could involve staggered workstations or office occupancy. 
  5. Use hand sanitizers, other hygiene materials, and personal protective equipment (“PPE”). Hand sanitizer, wipes, face tissues, and hand soap should be liberally available throughout the workplace.  In addition, and particularly to the extent the social distancing standard cannot be maintained, use of PPE (e.g., face covering and gloves) may be encouraged or even required.  These PPE measures may be especially prudent when going to the restroom, using common areas, reporting for meetings, or other times when employees are physically close to others.
  6. Develop a cleaning and disinfecting protocol.  Employers should create an overall cleaning and sanitizing schedule that includes regular cleaning and frequent disinfection of contact surfaces, pursuant to OSHA and CDC guidelines.[1]  Follow it rigorously, and keep track of such safety protocol compliance.
  7. Be careful with visitors and other traffic.  Reception areas and other high foot traffic areas may require installation of plexiglass barriers. Organizations may wish to post safety requirements and expectations, provide the hygiene materials as noted above, and require or encourage PPE usage when others are at the workplace.  Consider also using a visitor or attendance log, for potential contact tracing.
  8. Embrace a caring, safety-oriented culture.  The above-listed safeguards and other measures, may be appropriate for specific workplaces, should well demonstrate that the nonprofits’ workers are highly valued.

Use Careful Employee Health Monitoring

     1. What About Employee Discrimination and Privacy?

As part of re-opening operations, and in light of COVID-19-related health and safety concerns, employers may decide to test employees, ask health-related questions, or require self-certifications about health status. Such measures may be particularly important for symptomatic employees.

But such measures in turn may raise significant discrimination issues under the Americans with Disabilities Act (“ADA”) and comparable state laws.  Under such laws, an employer may be liable for taking adverse employee action based on an employee’s disability (whether actual or perceived).  Further checking may be required for any “reasonable accommodation” needed for the employee. Note too that if an employer retaliates against an employee based on a disability (even a perceived disability), liability may arise.  

Significant privacy issues may also arise involving employees’ health-related information. Notably, the Health Insurance Portability and Accountability Act (“HIPAA”) does not apply to employers generally, but third-party medical providers may provide HIPAA-protected employee information.  Appropriate confidentiality precautions should thus be taken, given the highly sensitive nature of much health-related information and potentially resulting invasion of privacy claims.  

As with any other health issue, employers should maintain all medical information received from the employee as confidential.  In particular, employers should not specifically disclose the identity of an infected employee or provide information that will allow other employees to identify infected individuals. Such disclosure restriction may be an easy compliance matter for large organizations, but not so much for small employers. 

     2. Questions and Testing

What may employers do and ask? Given the above discrimination and privacy issues, employers should exercise great care in questioning employees about COVID-19 symptoms, potential exposure, and overall health.  As with employee drug testing, COVID-19 questioning and testing may eventually become commonplace.  For now, though, legal standards are not clearly defined and warrant careful monitoring, particularly to avoid potential liability.

As a general matter, any employee medical test required by an employer must be “job related and consistent with business necessity” under the ADA.  Employers must also “ensure” that any tests are “accurate and reliable.” To that end, the EEOC has suggested that businesses review guidance from public health agencies such as the Food and Drug Administration about what constitutes safe and accurate testing. 

Notably, the ADA permits an employer to take a symptomatic employee’s temperature to confirm a fever.  Temperature screening is considered a medical examination within the meaning of the ADA and is permissible where (as with the coronavirus pandemic) an employer has a reasonable belief of a direct threat.  As a clarifying measure, the Equal Employment Opportunity Commission (which handles ADA claims), has stated that diagnostic testing of employees for COVID-19 before they enter a work site does not constitute an ADA violation. 

Keep in mind, however, that available COVID-19 diagnostic testing may result in incidences of false positives or false negatives. At best, such testing shows only whether a person currently has the virus.  A negative test does not mean that the employee will not acquire the virus later.  And, as the daily news stories reflect, testing options are evolving.

     3. A Congressional Example

While such developments continue, one helpful example may be the Pandemic Social Distancing and Daily Health Screening Guidelines for Congressional Offices and Workforces, issued on May 1, 2020 as Congress re-opened for business.[2]  As set forth in the guidelines’ preamble, the Guidelines list extensive safety protocols based on CDC best practices to minimize risk of coronavirus transmission in the workplace. In addition to addressing social distancing measures within the workplace, the guidelines require “daily screening of employee health prior to reporting for duty” and other safety measures as follows.

First, employees are required to measure their own temperatures each morning before reporting for work. Such approach is preferable to office-based temperature screening due to contact precautions and virus exposure risks. 

Second, congressional staffers and employees are required to complete a health-assessment survey or a series of yes or no questions before reporting to work (E.g., are you currently experiencing, or have you experienced in the last 7 days, any of the following symptoms: fever, chills, sore throat, frequent cough, shortness of breath, pain or tightness, flu-like symptoms, muscle pain, or loss of ability to taste or smell?).  If an employee responds affirmatively to any question, the employee is required to notify his or her supervisor, avoid the workplace, and consult with a medical professional.  A negative response is likewise reported to the supervisor before the employee presents for work, and any employee who fails to report self-monitoring results is not to be permitted into the workplace.  

Third, in conjunction with this self-monitoring, congressional work centers monitor employees for the appearance of respiratory illness.  Visibly ill employees are not to be present in the workplace until they have recovered.  While a work center is permitted to require an employee to submit a doctor’s note affirming clearance to return to the workplace, work centers are encouraged to rely on the employee’s assurance that he or she has consulted with a physician to avoid overburdening medical providers with verification requests. 

Carefully Follow Up

For most employers, a return to work will obviously not be as simple as calling employees back to their worksite. As leaders grapple with how and when to re-open workplaces, employers and employees alike will need to adjust to new expectations and requirements.  Measured steps are extremely important, as is diligent exercise of business judgment, adherence to applicable public health guidance, vigilant attentiveness to safety concerns, and related risk-management precautions.  So follow up carefully with next steps toward reopening, and with due consideration for evolving safety protocols and health precautions as the new workplace “normal.”