Return-to-Work Considerations

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As businesses begin to contemplate reopening, recalling remote and furloughed workers or, simply, how the new workplace might be structured, many questions arise. What will be the expected norms for employees, vendors, customers and visitors after the stay-at-home directive eases? What obligations do employers have to their employees?

The federal Centers for Disease Control and Prevention (CDC), the Occupational Health and Safety Administration (OSHA) and California’s Division of Occupational Safety and Health (Cal/OSHA) have issued guidelines to help employers understand their legal obligations to protect the health and safety of their returning workforce. In addition, essential businesses have learned many lessons in the last two months that might be helpful to other businesses that had to close, move to a remote model or significantly curtail operations. Find their guidelines here:

• CDC: https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html
• OSHA: https://www.osha.gov/Publications/OSHA3990.pdf
• Cal/OSHA: https://www.dir.ca.gov/dosh/coronavirus/General-Industry.html

These agencies have scrambled to help businesses promote workplace safety. Their guidance, however, generally is not binding. Businesses should review and implement their suggestions to the extent possible –– a business that acts in good faith to protect its employees from exposure to the virus, to establish policies and practices to reduce transmission, to investigate and handle possible exposure, is a business better able to defend against claims of an unsafe workplace.

PRE-RETURN PLANNING

Prior to returning employees to work on-site, employers must define a new normal by creating or revising policies to address: critical workplace injuries; general health and safety; employee relations; and benefits.

Some workers who were not eligible for and have not taken advantage of the paid leave benefits under the Families First Coronavirus Response Act might have to avail themselves of the benefits after they return to work. Businesses should plan for absences and disruptions as everyone readjusts.

REVIEW GUIDELINES ON EMPLOYEE HEALTH AND SAFETY

OSHA and Cal/OSHA require employers to provide their employees with a workplace free from “recognized hazards causing or likely to cause death or serious physical harm ....” Cal/OSHA’s standards are more detailed. For example, most businesses in California are aware that they must establish, implement and maintain an effective injury and illness prevention program (IIPP). It requires employers to: identify and correct workplace hazards, and to communicate them to employees; ensure that employees comply with the policy; investigate injuries and illnesses; and provide training when necessary . In the past, businesses have drafted and posted such policies with little need to update or change them. In the post-restricted world, however, businesses are advised to review and update their IIPPs.

OSHA and Cal/OSHA provide detailed standards applicable to specific industries. For example, health-care and related industries must abide by Cal/OSHA’s aerosol transmissible diseases (ATD) standard. A detailed analysis of specific industry standards is beyond the scope of this guide, so employers should consult the websites for OSHA and Cal/OSHA for guidance related to particular industries:

• OSHA: https://www.osha.gov/
• Cal/OSHA: https://www.dir.ca.gov/dosh/

Adhering to governmental guidelines and recommendations, and developing workplace policies around them, can help employers avoid employee claims of unsafe working conditions. And adherence can encourage workers to return to the workplace knowing that their employer cares about their health and safety.

ESTABLISH RETURN-TO-WORK POLICIES AND PROCEDURES

The first step is to evaluate the workplace and establish effective policies and procedures to ensure that they reduce the potential for coronavirus exposure and spread. In addition, consideration must be given to handling employees who are diagnosed with COVID-19. Many essential businesses that remained open during the stay-at-home order grappled with this reality, and their experience informs current best practices. Creating a safe workplace is an essential first step to assure employees that returning to work is safe.

ASSESS RISK AND EXPOSURE

OSHA instructs employers to determine the risk of exposure in their workplaces. Given the relatively easy transmission of the virus, all workplaces should consider COVID-19 to be a foreseeable risk. The level of risk depends on several factors, including:

• the type of industry;
• the need for close contact with individuals known or suspected of having the virus; and
• the frequency and/or duration of contact with such individuals.

Examples of industries that would be considered high risk of exposure include health-care facilities and first response agencies. Medium exposure businesses might include establishments open to the general public, such as grocery stores, retail outlets and schools. Low risk industries might include most office environments and others that have minimal contact with the public. Workers in the lowest risk category include those who telework, and perhaps workers in the home delivery business, where contact exposure has been reduced by changing practices.

DETERMINE PROTECTIVE AND PREVENTIVE MEASURES

After determining the level of risk from high to low, employers should evaluate what measures they can implement to protect employees in their specific work sites and industries. Protective measures could include construction or engineering changes, administrative changes and workplace practices and controls.

Examples of construction and engineering changes:

• erecting barriers between a retail employee and a customer;
• adjusting cubicles or workspaces to provide higher walls and less face-to-face contact with co-workers;
• modifying ventilation and airflow systems to circulate air more efficiently.

Examples of administrative changes:

• strict enforcement of policies, such as staying at home when sick;
• social distancing employees physically and with flexible or staggered work hours and the use of technology to limit face-to-face meetings;
• flexibility with teleworking arrangements;
• revising travel policies; and
• use of personal protective equipment, including masks and face shields.

Examples of workplace changes:

• providing sufficient hand-sanitizing stations;
• cleaning frequently touched surfaces (kitchen counters, cafeteria tables and chairs, etc.) often and thoroughly with disinfectant: and
• permitting employees to use personal protective equipment and wash their hands frequently.

Different industries and businesses require different approaches. Tailor all policy and procedure changes to the needs of your organization with guidance from the CDC, OSHA and Cal/OSHA, and advice from your employment attorney.

ESTABLISH POLICIES AND PRACTICES TO IMPLEMENT PROTECTIVE AND PREVENTIVE MEASURES

After evaluating risk and protective measures, employers should establish policies and practices in writing. In California, such practices should be included in the IIPP and in handbook policies distributed to all employees. OSHA, Cal/OSHA and the CDC recommend, among other measures, practices that apply across industries:

• Promote frequent hand-washing and discourage the shared use of materials and spaces.
• Train employees on cough and sneeze etiquette, hand hygiene and not to touch their faces.
• Stagger breaks and meal periods to minimize employee interaction, particularly in break rooms.
• Provide employees with tissues, hand sanitizers and no-touch trash bins.
• Routinely clean and disinfect shared workspace equipment and furniture.

Employers should train employees about the proper use of personal protective equipment, and instruct them on how to identify COVID-19 symptoms. They should require workers to report if they develop any symptoms. Policies should include not only self-monitoring, but self-quarantining and isolation practices to prevent the spread of the virus should an employee become infected. Industries at higher risk might implement a temperature monitoring program. Many essential businesses have established these practices, and other employers might want to implement them in advance of reopening.

Employers should advise employees about available sick leave, vacation or paid time off should they, or a family member, become ill or quarantined at the advice of a health-care provider.

The CDC includes many examples of specific measures businesses can take to protect their employees and reduce transmission of the virus. Consult the guidelines when drafting your policies and procedures.

ESTABLISH SCREENING PROCEDURES IF NECESSARY

Screening might include taking temperatures as employees arrive for work each day. But the practice must comply with the California Consumer Privacy Act (CCPA). (See the subsection above: FAQs –– Disability and Reasonable Accommodations.) According to the Equal Employment Opportunity Commission, any screening or testing measures employers take should be accurate, reliable and mindful of ”the incidence of false positives or false negatives with a particular test.” The EEOC notes that accurate testing reveals only if the virus is present; a negative test does not indicate if an individual previously might have exposed someone else or the likelihood that he or she will contract the virus later.

Employers who want to implement COVID-19 testing should:

• Screen all employees entering the work site. Employers may not discriminate.
• Require employees to consent in writing to the screening. The consent should explain how test results will be used and how results will be stored per the CCPA.
• Limit the scope of screening to COVID-19 –– unnecessarily broad tests are illegal and invite claims of HIPAA or ADA violation.
• Retain all testing results as confidential medical records per ADA requirements.
• Know that some employees might have a medical condition requiring accommodation for an alternative testing method (for example, instead of a nasal swab).
• Have a plan for handling an employee's refusal to submit to a test. It might include barring access to the work site.
• Know that wage-and-hour laws require pay to nonexempt employees for testing time, including awaiting the results if the employee is not admitted before the results are known.
• Determine when and under what conditions an employee who tests positive for COVID-19 will be able to return to the workplace. Is a subsequent negative test sufficient? Two subsequent negative tests?
• Know how to address potential workplace exposure if someone tests positive, especially if the worker was on-site in the days before the test.

Note: The California Department of Fair Employment and Housing has not issued guidelines for the use of COVID-19 diagnostic tests, although it has approved the nondiscriminatory practice of temperature-taking. California employers are strongly advised to consult their employment attorneys before implementing a testing program.

ACTIVELY ASSESS AND MONITOR POLICY COMPLIANCE

It's critical that employers not only implement policies and practices but monitor them to ensure they remain effective as the situation changes. That effort might include training, retraining, observing, inspecting, updating policies and practices and correcting hazards and noncompliant behaviors. All efforts should be documented thoroughly should there be a complaint to OSHA or Cal/OSHA, if either agency inspects the facilities or to defend against discrimination or whistleblower claims.

AMEND POLICIES AND PRACTICES –– BE FLEXIBLE

As the pandemic unfolds and we learn more about the virus –– how it spreads, who is most likely to be infected severely, treatment options and vaccines –– employers must remain vigilant and flexible in how they react.

If a second wave of illness occurs, or additional guidelines are released, employers should adapt, and revise workplace policies with dispatch.

OSHA AND CAL/OSHA RECORDING AND REPORTING REQUIREMENTS

Most employers with 10 or more employees are required to record certain injuries or illnesses under OSHA and Cal/OSHA. Even if a business is exempt from the record-keeping requirement, all employers must report certain serious injuries or illnesses. To determine which employers are subject to record keeping under OSHA, see https://www.osha.gov/recordkeeping/ and under Cal/OSHA, https://www.dir.ca.gov/dosh/etools/recordkeeping/index.html.

When employers record injuries and illnesses, the information usually is reported to OSHA or Cal/OSHA only as statistics. Either agency may request additional information. In California, covered injuries and illnesses are recorded on Form 300 –– Log of Work-Related Injuries and Illness. An in-depth review of OSHA and Cal/OSHA reporting requirements is beyond the scope of this guide. Employers are encouraged to review the OSHA and Cal/OSHA websites for further details on record keeping and reporting.

It's not easy to determine whether COVID-19 must be recorded or reported, as clear guidance has not emerged and it can be impossible to know if someone contracted the virus at the workplace.

RECORDABLE INCIDENTS

Cal/OSHA and OSHA agree that employers must record cases of COVID-19 only if all of these apply:

• The case is confirmed as COVID-19.
• The case is work related, as defined by 29 C.F.R. § 1904.5.
• The case involves one or more of the general recording criteria defined in 29 C.F.R. § 1904.7 (that is, medical treatment beyond first aid, or days away from work).

Cal/OSHA follows OSHA guidelines with respect to when COVID-19 is considered to be a confirmed case –– when an individual has at least one respiratory specimen that tested positive https://www.osha.gov/memos/2020-04-10/enforcement-guidance-recording-cases-coronavirus-disease-2019-covid-19.

An illness is work related “if an event or exposure in the work environment either caused or contributed to the resulting condition ....” The regulation defines several exceptions for illnesses that occur in the work environment, but are not work related. One notable such exception is an illness that “involves signs or symptoms that surface at work but result solely from a non-work-related event or exposure that occurs outside the work environment” –– such illness is not recordable. But determining where, when and how an individual contracted COVID-19 is nearly impossible, and Cal/OSHA does not provide clear guidance.

For cases in which “it is not obvious whether the precipitating event or exposure occurred in the work environment or occurring away from work,” the employer “must evaluate the employee’s work duties and environment” to determine work relatedness. That means employees in a high-risk environment –– a hospital or first response agency –– are more likely to become infected through work than an office worker who is teleworking. If multiple employees contract the illness, of course, it's more likely that the infection was contracted at work.

REPORTABLE INCIDENTS

Cal/OSHA requires that employers report by telephone within eight hours "any serious injury or illness, or death, of an employee occurring in a place of employment or in connection with any employment." Cal/OSHA defines "serious injury or illness" as "any injury or illness occurring in a place of employment or in connection with any employment that requires inpatient hospitalization for other than medical observation or diagnostic testing...." The critical inquiry for reporting purposes is whether COVID-19 was contracted "in a place of employment or in connection with any employment" and, for reporting purposes, required "inpatient hospitalization."

Given the confusing and conflicting guidance, a prudent California business should make the telephone report, or at least seek advice from a Cal/OSHA intake officer about whether the infection is reportable. Deciding if the illness was work related has far-reaching consequences, so the decision should be made in consultation with an experienced OSHA attorney and/or a workers’ compensation attorney. By taking some action, a California business might avoid an OSHA citation or penalties.

POTENTIAL CONSEQUENCES OF NONCOMPLIANCE WITH OSHA AND CAL/OSHA REQUIREMENTS

OSHA and Cal/OSHA have inspection and audit rights, and also the authority to impose significant penalties. They can even shut down a business. These are all possible consequences of noncompliance:

• OSHA and Cal/OSHA inspections resulting from employee complaints or reports of serious illness or injury (possibly including multiple incidents of workplace COVID-19);
• stop-work orders and red tags if an inspection finds imminent hazards;
• Cal/OSHA monetary penalties of more than $10,000 without penalty enhancements for a "serious" citation;
• criminal liability (See https://www.dir.ca.gov/dosh/Enforcementpage.htm).

Civil lawsuits brought by employees for unsafe working conditions or retaliation for making health and safety complaints also might result from an employer's failure to take seriously its responsibility to assess risk, determine best practices to protect the health and safety of employees and implement effective policies and practices.

RETALIATION IS PROHIBITED

The COVID 19 pandemic probably will prompt an uptick in workplace health and safety complaints. Employers should be cautious in how they respond to such employee actions. Taking adverse action against any employee because he or she made a health and safety complaint could be considered retaliatory.

Employees who make a good-faith oral or written complaint about their workplace safety to the employer, the employee’s representative (a union rep) or governmental agencies are protected from retaliation even if the complaint turns out to be unfounded.

Practice Tip: Employers should consider how they respond to an employee who wants to stay home because he or she fears that the workplace is unsafe. If you believe that you have implemented policies and procedures that comply with OSHA, Cal/OSHA and CDC guidelines, you may choose to tell the employee that the leave is not authorized. But do so with caution. If you are uncertain that your policies and procedures are fully compliant with federal and state guidelines, you might want to approve the absence. If you grant one employee's request, however, you might be required to grant all such requests. Granting the employee’s request to stay home might be the best response, especially if the workplace has a high risk of exposure, multiple employees have contracted COVID-19 and/or the individual making the request is at higher risk of developing complications from the illness.

CONSIDER ESTABLISHING A PANDEMIC COORDINATOR OR PANDEMIC TEAM

The American Medical Association believes that there's a 75% chance of a second wave of COVID-19 cresting in the summer or fall https://www.ama-assn.org/delivering-care/public-health/what-s-ahead-covid-19-expert-offers-forecast-summer-fall.

Now is the time to develop contingency plans to deal with a potential second stay-at-home order or enhanced social distancing requirements.

An employer's return-to-work plans might include designating a pandemic coordinator and/or team with defined roles and responsibilities for proper response. The size of the team and its responsibilities should reflect the level of risk the business faces from potential or actual COVID-19 exposure. As explained above, certain businesses are considered a very high risk, while others are low risk. So, at a hospital, almost all employees might be members of the pandemic team. In an office setting, a single pandemic coordinator probably would suffice. Employers should invite staff members with expertise and awareness of equal employment opportunity laws to be on the team, or at least consulted in the planning. If the business is large enough, employees with disabilities should be included in planning discussions.

Employers are not allowed to ask an employee to disclose if he or she might be more vulnerable to complications from COVID-19, or to question whether the worker has a compromised immune system or a chronic health condition. But an employer probably can identify which employees might not be available for work during a pandemic by making inquiries that are not related to disability. An inquiry is not disability related if its purpose is to identify potential nonmedical reasons for absence during a pandemic. For example, an employer may ask about the effect if public transportation is unavailable during a pandemic. Such nonmedical inquiries should be structured so that the employee can answer "yes" or "no" without specifying what applies only to him or her. The answer need not be anonymous. The EEOC has an ADA-compliant pre-pandemic employee survey for making proper medical information requests https://www.eeoc.gov/facts/pandemic_flu.html. Here it is:

Directions: Answer yes to the whole question without specifying the factor that applies to you. Simply check "yes" or "no" at the bottom of the page.

In the event of a pandemic, would you be unable to come to work because of any of these reasons:

1. If schools or daycare centers were closed, you would need to care for a child.
2. If other services were unavailable, you would need to care for other dependents.
3. If public transportation were sporadic or unavailable, you would be unable to travel to work. and/or
4. If you or a member of your household falls into one of the categories identified by the CDC as being at high risk for serious complications from the pandemic influenza virus, you would be advised by public health authorities not to come to work (for example, pregnant women; persons with compromised immune systems due to cancer, HIV, history of organ transplant or other medical conditions; persons less than 65 years of age with underlying chronic conditions; or persons over 65).

Answer: Yes _____ No _____

Employers concerned about staffing levels in the event of a second wave of the illness should consider implementing a similar survey. If you intend to deviate from the approved EEOC model you are strongly encouraged to consult employment counsel to ensure that the survey is not discriminatory and that you are not inadvertently violating disability or privacy rights of employees.

SEE ALSO

• "Sullivan on Comp" Chapter 11: Return to Work

REFERENCES

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