Considerations When Employees Return to Work During COVID-19 Pandemic

04.22.2020

On Thursday, April 16, 2020, the President announced that governors may begin lifting coronavirus (“COVID-19”)-related stay-at-home orders as early as May.  On Friday April 17, 2020, Governor Gavin Newsom urged caution during a press conference, and declined to state when he would lift the statewide stay-at-home order implemented in his Executive Order N-33-20.

In light of these developments, California employers should begin to plan for their employees to return to work, including addressing issues posed by the ongoing COVID-19 pandemic.

Accommodations under the ADA

In preparing for employees returning to work, employers should prepare for employee requests for accommodation. On Friday, April 17, 2020, the United States Equal Employment Opportunity Commission (“EEOC”) issued updated COVID-19-related guidance that addressed Americans with Disabilities Act (“ADA”) issues regarding employee accommodation requests and employees returning to work. The EEOC’s recent guidance provided important information about accommodations. Of particular note, the EEOC advised:

• Employers may continue to request information or medical documentation from employees to determine whether they have a qualifying disability under the ADA that requires accommodation;
• Employers may forgo the “interactive process” – the discussion between the employer and employee focused on whether an impairment constitutes a legally-protected disability and the reasons that an accommodation is needed - and grant temporary accommodation requests given the COVID-19 pandemic;
• Depending on the circumstances, an employer may deny accommodation requests if they pose an “undue hardship,” as accommodations that otherwise may not pose an undue hardship might qualify as an undue hardship due to the COVID-19 pandemic;
• Employers may ask employees with disabilities to request accommodations that employees believe they may need when the workplace reopens; and
• While employers may require employees to wear personal protective equipment and engage in certain infection control practices (e.g., regular handwashing and social distancing protocols), employers should be ready to discuss disability and religious accommodations related to these new requirements.

Temperature Screening

The EEOC previously indicated that employers may screen employees entering the workplace through temperature checks due to the public health crisis posed by the COVID-19 pandemic. Consequently, employers should consider administering daily temperature checks, requiring self-administered temperature checks, and/or asking questions about COVID-19-related symptoms (consistent with public health guidance) before permitting employees to enter the workplace. The EEOC advises employers to make sure that they do not engage in unlawful disparate treatment based on protected characteristics (e.g., national origin or race) in decisions related to screening and exclusion.

Employers are advised to consider whether to retain a professional third party possessing medical training to administer temperature screening checks or have employees self-administer the checks. We recommend that employers use a non-contact thermometer or forehead strips rather than oral thermometers, which are more invasive.

In general, employers should encourage employees to self-monitor for COVID-19-related symptoms, and to immediately report any symptoms to their supervisor or the Human Resources Department. If employees become sick during the day, employers should send those employees home immediately. For employees who are sent home due to COVID-19-related symptoms or some other illness, employers are advised to consider whether to require a health care provider’s note for clearance to return to work or some other form of fitness-for-duty documentation from local clinics. However, we recommend that employers consult legal counsel before enforcing such a rule, as county (and other local) public health orders and local collective bargaining agreements may preclude employers from requiring health care provider notes for employees returning to work.

Sick Leave

Employers should ensure that sick leave policies are flexible and consistent with public health guidance and that employees are aware of and understand these policies. Employers should also review their Human Resources policies to ensure that they are consistent with existing state and federal workplace laws, especially the emergency leave provided under the Families First Coronavirus Response Act (“FFCRA”). For more information about the FFCRA leaves, we recommend employers review our prior Alert on the law as well as our Alert on the Department of Labor's Temporary Rule on the FFCRA.

Employers may also want to consider granting any combination of paid and non-paid leaves to permit sick employees to stay home or care for a sick family member, or, if possible, permit employees to work remotely until they are able to return to work.

Social Distancing

The Governor’s Executive Order N-33-20 and numerous city and county public health orders require that employees practice social distancing in the workplace. Local public health orders have imposed further requirements on eligible “essential businesses,” including educational institutions, to adopt written social distancing protocols. 

For other local public entities, including cities, counties, housing authorities, and special districts, which may not be fully subject to such requirements, we nevertheless recommend that employees be directed to comply with relevant local, state, and federal public health guidelines relating to social distancing, face coverings, and other personal protective equipment.  Employers should recognize that these public health requirements may vary from one jurisdiction to the next.

We recommend that all employers consult their local public health order, the California Department of Public Health's Guidance on Social Distancing practices, and the CDC’s Social Distancing Guidance for more information.

Personal Protective Equipment

Employers would be well advised to conduct a hazard assessment to determine if hazards are present which necessitate the use of Personal Protective Equipment (“PPE”).  If an employer identifies COVID-19 as a workplace hazard, they must select and provide exposed employees with properly fitting PPE that will effectively protect employees.  This could include the use of gowns, face masks, and gloves.  In addition, employers must provide hand washing facilities that have an adequate supply of suitable cleansing agents, water, and single use towels or blowers.  Employers are also advised to have hand sanitizer which contains at least 60% alcohol available.  Employers should implement measures to prevent and reduce infection hazard and train their employees on their COVID-19 prevention methods.

Alternative Work Schedules

Employers may also consider implementing modified employee work schedules to minimize the number of employees present at the worksite at any given period of time. For example, an employer can incorporate varying times for employees to arrive at work, leave work, or take lunch breaks. Employers can also consider alternating work shifts. For example, an employer may rotate one set of employees to work on Mondays and Wednesdays, another set of employees to work on Tuesdays and Thursdays, and another set of employees to work on Fridays and Saturdays.

Other Considerations

Employers should also consider the following:

• Taking precautions with food at work, such as temporarily ending communal shared food in the office (e.g. birthday cake shared among coworkers);
• Physically reorganizing the workplace, such as designating one-way aisles or creating physical barriers to ensure minimum distances; and
• Implementing flexible meeting options, such as conducting meetings remotely via telephone or through a video conferencing application.

To prepare for having their employees return to work, employers should continue to stay aware of all federal, state, and local orders and modify their action plans accordingly to prepare for having their employees return to work. We recommend that employers consult with legal counsel before implementing these policies, as circumstances are frequently changing and applicable health orders may be updated.

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR presentation/publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process.

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