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What Reopening Business Looks Like and other considerations

April 30, 2020

In this post, we discuss taking proactive steps to considering what considerations to take into account while coming out of "Stay at home" orders, the COVID related safety issues with OSHA, and updates to the EEOC position on COVID testing.

 

Reopening Business.  The Federal government has started to discuss what coming out of the Coronavirus lockdown will look like, after having issued a three part plan.  Georgia has started to reopen ahead of the critical indicators outlined, while Massachusetts has just extended its stay at home protocol for another couple of weeks.

 

Reopening business is going to take a concerted effort, and will rely in large part on mobilizing employees to get back to work. This could be a difficult situation if the enhanced unemployment benefits – designed to protect the economy while business is interrupted – acts as a hindrance to people returning to work even while Labor Secretary Scalia has highlighted that states must stop unemployment benefits when the recipients are able to return to work. Combined with incomplete and sometimes conflicting information about the virus, reticence to return to work can be expected.  The difference between ability and willingness is not always easily divined especially in an environment as fraught as this.   

 

This sets the stage for some significant considerations for your business. Employees will be concerned, if not scared, to return to work. Customers or clients may be reticent to return over safety concerns.  Consider this for a moment, the job of manager has now changed in the period of a few months, to now potentially include taking employee temperatures, managing people flow in your establishment, placement of work stations for social distancing. We’ve put together a brief guide for post coronavirus return to work planning to help you consider your reopening plans.  Our HR Solutions, benefits, and DaVinci Capital teams are available to help you walk through your plans.

 

ALSO NOTE: On April 18, the Department of Labor ended it’s non-enforcement period of the coronavirus response act implementation.  This means the DOL will now be responding to complaints of non-compliance. This not only includes the coronavirus specific legislation, but also issues around employers failing to pay earned wages due to cash flow issues with enforcement being a significant area of focus.  As a reminder, you must display/distribute the DOL FFCRA poster for your workplace.

 

OSHA/Safety Concerns. During pandemic OSHA has received roughly 2400 COVID related complaints and has closed about 1400 of these. The agency is working with the CDC to coordinate workplace exposure reduction and formulate best practices. Additionally, they have issued preliminary guidance on reporting workplace exposure to COVID

 

This guidance seems to suggest that outside of  healthcare industry, emergency response organizations (e.g., emergency medical, firefighting, and law enforcement services), and correctional institutions, the agency will only enforce reporting of COVID infection as work related in situations where there is objective evidence that a COVID-19 case may be work-related and The evidence was reasonably available to the employer. The agency goes on to say this could include, for example, a number of cases developing among workers who work closely together without an alternative explanation; and, examples of reasonably available evidence include information given to the employer by employees, as well as information that an employer learns regarding its employees’ health and safety in the ordinary course of managing its business and employees.

 

The agency has been working on publishing industry standards for retail, delivery, manufacturing, with an eye toward meat packing, curb side delivery, and construction.  Best practice guidance on Hygiene, social distancing, cleaning and disinfection, equipment sharing, and sick employee procedures best practices. For the time being, OSHA has general guidance for preparing workplaces for COVID-19.

 

EEOC/Discrimination. According to guidance updated April 23, a mandatory COVID-19 test may be administered if it is "job related and consistent with business necessity." Given that a person with the virus "will pose a direct threat to the health of others," an employer can choose to test employees entering the premises.

 

EEOC says "employers should ensure that tests are accurate and reliable." Additionally, it recommends that employers "still require  —​ to the greatest extent possible —​ that employees observe infection control practices (such as social distancing, regular hand-washing, and other measures)" in order to prevent the spread of COVID-19 at work.

 

Employers covered by the Americans with Disabilities Act (generally employers of 15 or more employees) are allowed to take employees' temperatures as they enter the workplace, even though this is considered a medical exam. Workers who refuse to undergo required disease-prevention measures may be barred from entering the workplace in order to protect the safety of other employees. The EEOC has not explained or clarified the meaning of the phrase, "upon entering the workplace." Nor has it addressed whether employers may administer serological (anti-body) testing. 

 

The agency has reiterated that state and federal anti-bias laws continue to apply during the pandemic. Employees and applicants cannot be singled out for special testing or other measures on the basis of race, religion, sex or other protected characteristics.The agency also recommends proactive measures to prevent discrimination and harassment, starting with explicit communication to the workforce that fear of the pandemic should not be misdirected toward individuals on the basis of national origin, race, or other prohibited basis. 

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