May 11, 2020Client Alert

Your Stay-at-Home Order is Lifted: Now What? Returning to Work during the COVID-19 Pandemic

By now, you have seen the news and various reports of states and localities beginning to relax their respective “Stay-at-Home” or “Shelter-in-Place” orders, allowing certain businesses to resume in-office operations, even while the COVID-19 pandemic remains a prevalent and persistent concern. The eventual return to work will not be a return to how things were, but rather a return to a “new normal.” In this Client Alert, we explore a variety of suggested practical health and safety measures businesses should consider prior to reopening. Unfortunately, these suggested health and safety measures are not a “one size fits all” so businesses in different industries will need to adjust these measures accordingly.  All businesses, regardless of industry or size, should work with legal counsel to determine a plan for reopening that is specific to the business and its unique customer and employee needs. Businesses also should seek legal advice regarding the numerous other legal considerations relevant to reopening, including wage and hour concerns; employee leaves and privacy; and benefits. 

For Office-Settings:

  1. Continue to Enforce Social Distancing. One of the best ways to mitigate exposure is to maintain a distance of six feet between people. This is true in the office and when in public. For offices with separated workspaces, like cubicles or individual offices, this may be an easy rule to enforce. However, for offices with large co-working spaces, efforts need to be taken to designate workstations at least six feet apart. This may be done by taping off workstations, assigning specific areas for each employee, or placing signs noting where workspaces start and stop. For open workspaces, businesses also may consider installing walls (plexiglass or a similar material) between workstations as an additional effort to mitigate inter-office exposure. Social distancing measures also should be enforced with non-employees. For example, clients or customers should be required to maintain six feet distance from employees and other clients or customers. This may require leveraging technology and continuing to host the bulk of customer and client meetings virtually. Rules also should be in place for delivery drivers or other service providers who frequently enter the office. 
  2. Hire a Professional Cleaning Service. Prior to reopening, consider hiring a professional cleaning service to do a preliminary deep clean prior to inviting employees back to the office. Businesses should then consider bi-weekly or weekly cleanings where all surfaces and objects are adequately sanitized per CDC recommendations. Shared surfaces and objects, such as doorknobs and keypads, should be cleaned and sanitized daily with an EPA-recommended cleaning solution. For businesses operating in a leased space, verify that your landlord is properly maintaining and sanitizing common areas daily, such as elevators, doors, and stairwells. Make sure any third party company hired is fully aware of CDC sanitation measures, and that all of their employees are screened for possible exposure to COVID-19 prior to entering your premises. You also should verify and/or request that all cleaning personnel wear face coverings and gloves to mitigate additional exposure.
  3. Have Sanitation Supplies Available for Use by Employees. Make sure prior to opening that each office location is well-stocked with sanitation supplies, such as antibacterial soap, antibacterial cleaners/wipes, and hand sanitizer. All such supplies should be readily available to employees at all times. When using any shared office equipment (e.g. copier, printers, etc.), employees should be required to use hand sanitizer before and after use or to wipe down the equipment with an antibacterial cleaner. As a reminder, place hand sanitizer around the office, especially in any common areas, with signs reminding employees to wash their hands frequently and to wipe down any equipment before and after use.
  4. Consider Temperature Checks and Face Coverings. Consider requiring employees to have their temperature taken prior to each shift. Any employee registering a temperature at or above 100.4 degrees Fahrenheit should be immediately sent home and CDC-recommended sanitation protocols for potential COVID-19 exposure should be immediately followed. For offices where employees are often interacting with one another, consider requiring the use of face masks or face coverings while in the office.
  5. Require (and Encourage) Sick Employees to Stay Home. Employees reporting symptoms of COVID-19 or related illness or who have suffered known exposure to COVID-19 should be required to stay home until the CDC’s guidance for returning to work post-exposure or illness is met. Encourage remote working to the extent possible and revisit your company sick leave policies to the extent necessary. Make sure employees are aware of any sick leave or PTO policies and how to access these benefits.
  6. Communicate, Communicate, Communicate. As you adopt new rules, know these may be subject to change as the COVID-19 pandemic develops. Similarly, be prepared to revert to remote working if “Stay-in-Place” orders are re-issued by your state or local government.  Recognize that this is new territory for businesses and employees so be patient, welcome questions and concerns, and communicate the above rules to employees well in advance of their first day back in the office. Make sure you have designated someone to receive and respond to employee questions, concerns and requests for leave due to illness or suspected illness. Also, don’t forget about complying with the Families First Coronavirus Response Act, which remains in effect until December 31, 2020.

For Customer-Facing Businesses:

In addition to the above considerations, customer-facing or non-office businesses have particular issues to consider as they reopen.

  1. Social Distancing Must Be Enforced Against Employees And Customers. For the foreseeable future, businesses need to make sure customers and employees can work at or patronize the place of business while maintaining six feet distance from one another. This requires training employees on the importance of maintaining social distancing and posting rules throughout the establishment for customers to follow. This may require taping off six feet markers in check-out lines, blocking off exercise equipment to ensure customers maintain a safe distance, and actively directing customers to remain six feet apart at all times. For some businesses, this will be easy, but for others this may require creativity and patience.
  2. Occupancy Rules. Many of the relaxed “Stay-at-Home” orders require reopening businesses to operate at a lower occupancy rate. Businesses must be aware of these restrictions and determine a protocol for making sure it is enforced at applicable locations. This may require posting an employee at the main entrance with the ability to count how many customers are inside the business at all times. Be prepared for disgruntled customers and have a protocol for addressing concerns. Affected businesses also will need to make sure they arrange for any lines to enter the business to maintain social distancing requirements.
  3. Have Hand Sanitizer And Other Cleaning Items Available for Use. When the public enters a business, they will want to see evidence that the business is taking the COVID-19 pandemic seriously and has proper protocols in place to keep its staff and customers safe. This may include posting hand sanitizer throughout the facility, including at the main entrance. This also may include around the clock sanitation and cleaning, employees wearing face coverings and/or gloves, and circulating information about what the business is doing to remain sanitary and safe. Businesses should consider leveraging social media and related public platforms to notify the public of its sanitation protocols in light of COVID-19 and note any new customer rules that will be required for the time being, such as requiring customers to wear face coverings and/or gloves.
  4. Consider Temperature Checks and Face Coverings. Similar to the above, consider requiring employees to have their temperature taken before the start of each shift and requiring the use of face coverings in the workplace. Before returning employees to work, consider asking about their travel history and potential exposure, in addition to any symptoms they may be experiencing related to COVID-19 (e.g. fever, shortness of breath, cough). If the employee has been potentially exposed within the past 14 days, consider having them work remotely or stay at home until 14 days have passed and the employees continues to be symptom-free. 
  5. Adopt a Renewed Focus on Health and Safety. Customers coming inside a business should immediately be able to see and note what safety measures have been put in place. Have customer service representatives available to respond to questions and concerns, and be patient and encouraging of customers and employees navigating the new normal. Keep customers apprised of any new rules or changes in hours or operation on social media and related platforms. Communication with the public will be key during any reopening period.
  6. Continue Remote Operations to the Extent Possible. Continue allowing employees to work remotely to the extent possible and leverage technology to replace in-person interactions.  Continue offering curb-side services like pickups and deliveries of food and goods. Be prepared to adapt and change as states and localities continue to adjust the applicable orders to reflect the current status of COVID-19.

Once again, businesses should be advised that in addition to the above, there are numerous other legal considerations relevant to reopening, including wage and hour concerns; employee leaves and privacy; and benefits. Prior to reopening, employers should work with legal counsel to formulate a robust plan that considers the practical implications discussed in this alert with the important legal concerns. For more information and resources, please visit our Michael Best Return to Work Strategy site, COVID-19 Resource Center or contact your Michael Best attorney.  

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