Return-to-Work Considerations

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As businesses begin to contemplate reopening, recalling remote and furloughed workers, or simply, contemplating how the new workplace might be structured, many questions arise. What will be the expected norms for employees, vendors, customers, and visitors in a post stay at home work environment? What obligations do employers have to their employees? The federal Center for Disease Control (CDC), the Occupational Health and Safety Administration (OSHA), and California’s Division of Occupational Safe and Health (CalOSHA) have issued guidance 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 may be helpful to other businesses that had to close, move to a remote model, or significantly curtail operations.

CDC’s guidance for businesses and employers can be found here: https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html

OSHA guidance on preparing workplaces can be found here: https://www.osha.gov/Publications/OSHA3990.pdf

CalOSHA interim guidance for general industry can be found here https://www.dir.ca.gov/dosh/coronavirus/General-Industry.html

These agencies have scrambled to provide guidance related to workplace safety. The guidance is generally not binding however, businesses would be wise to review and implement, to the extent possible, some of the guidance established by these agencies. A business acting in good faith to protect its employees from exposure to the virus and having policies and practices in place to reduce transmission, investigate and handle possible exposure will help the employer to establish defenses to claims of an unsafe or unhealthy workplace.

PRE-RETURN PLANNING

Prior to returning employees to on site work, employers need to define the new normal by creating or revising policies to address a range of critical workplace injuries, including health and safety, employee relations and benefits.

In addition, some workers who were not previously eligible and have not yet taken advantage of the paid leave benefits under the Families First Coronavirus Act may have to avail themselves of the benefits after a return to work. Businesses need to plan for absences and disruptions and would be well served to plan for it now.

REVIEW GUIDELINES ON EMPLOYEE HEALTH AND SAFETY

Both OSHA and CalOSHA require employers to provide their employees with a workplace free from “recognized hazards causing or to cause death or serious physical harm.” 29 U.S.C. section 654(a)(1). CalOSHA’s standards are more detailed. For example, in California, most businesses are aware they must establish, implement and maintain an effective injury and illness prevention program (IIPP) requiring employers to not only identify and correct workplace hazards, but to communicate those hazards to employees, ensure that employees comply with the policy and investigate injuries and illnesses, and providing training where necessary. (8 Cal. Code of Regs section 3202(a)). In the past, businesses have generally drafted and posted these policies and have had little need to update or change them. In the post stay at home work environment, businesses would be well advised to review and update their IIPPs.

Both OSHA and CalOSHA provide detailed standards applicable to specific industries. For example, healthcare and related industries must abide by CalOSHA’s aerosol transmissible diseases (ATD) standard. A detailed analysis of specific industry standards is beyond the scope of this guide and employers should consult OSHA and CalOSHA’s webpages which are dedicated to providing specific guidance related to particular industries.

OSHA: https://www.osha.gov/

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

Adherence to governmental guidelines and recommendations and developing workplace policies around these guidelines and recommendations can help employers avoid employee claims of an unsafe working conditions and adherence can encourage employees to return to work with the knowledge their employer has taken affirmative steps to ensure 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 aimed at creating a safe workplace to 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 who have remained open during the stay at home orders have already grappled with this issue and their experience informs current best practices. Creating a safe workplace is a first step to assuring employees they can safely return to work.

ASSESS RISK AND EXPOSURE

OSHA instructs employers to determine the risk of exposure in their work places. 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 a number of factors, including:

· The employer’s industry;

· The need for close contact with individuals known or suspected of having the virus;

· The frequency and/or duration of contact with such individuals.

Examples of industries who would be considered very high or high risk of exposure would include healthcare facilities and first responders. Medium exposure businesses might include establishments open to the general public like grocery stores, retail outlets, and schools. Low risk industries might include most office environments and those environments that have minimal contact with the public. Workers in the lowest risk category would include workers who are teleworking, and perhaps workers in the home delivery business where exposure contact has been reduced by changing practices in the industry.

DETERMINE PROTECTIVE AND PREVENTATIVE MEASURES

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

Examples of construction and engineering changes could include:

· erecting barriers between a retail employee and a customer;

· adjusting cubicles or workspaces so there are higher walls and more barriers to face to face contact with co-workers;

· modifying ventilation and airflow systems too more efficiently circulate air.

Examples of administrative changes could include:

· strict enforcement of policies such as staying at home when sick:

· social distancing employees either physically or through flexible or staggered work hours, avoiding face-to-face meetings by using technology;

· flexibility with teleworking arrangements;

· revising travel policies; and

· use of personal protective equipment including masks, face shields and other devices.

Workplace changes could include:

· ensuring there are an appropriate number of hand sanitizers;

· ensuring high touch surfacing like kitchen counters, cafeteria tables and chairs are more frequently and thoroughly cleaned and sanitized; and

· allowing employees to practice more frequent personal hygiene like washing hands and using personal protective equipment.

Be sure to tailor all policy and procedure changes to the needs of your organization as different industries and businesses will require different approaches. Guidance from CDC, OSHA and CalOSHA should be consulted in consultation with your employment attorney.

ESTABLISH POLICIES AND PRACTICES TO IMPLEMENT PROTECTIVE AND PREVENTIVE MEASURES

After considering risk and evaluating protective measures, employers should establish policies and practices in writing to implement protective measures. In California, these practices should not only be included in the IIPP but also in handbook policies that are distributed to employees. Guidance from OSHA, CalOSHA and the CDC recommend, among other things, the following practices that apply across industries:

· Promote frequent handwashing and discourage practices that involve shared use of materials and spaces;

· Train employees on cough and sneeze etiquette, hand hygiene, and avoiding touching their face with unwashed hands;

· Stagger breaks and meal periods to minimize employee interaction, particularly in break rooms;

· Provide employees with tissues, hand sanitizers, and no touch disposal trashcans; and

· Perform routine environmental cleaning of shared workplace equipment and furniture.

In addition, employers should distribute guidance to employees on self-identifying COVID-19 symptoms and actively encourage and require employees to report if they develop any of the 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 could consider implementing a temperature monitoring program. Many essential businesses already have these practices established and employers reopening should consider implementing these practices prior to employers returning to work. Employers should advise employees what sick leave, vacation or PTO, and leave policies are available to them should they, or a family member, become ill or quarantined at the advice of a health care provider.

Finally, train employees to properly apply newly established procedures for example, the importance and proper use of personal protective equipment and personal hygiene.

The CDC includes many examples of specific ways businesses can protect their employees and reduce transmission among employees. Employers are encouraged to consult the guidelines when drafting their own policies and procedures to their specific workplaces.

ESTABLISH SCREENING PROCEDURES IF NECESSARY

Screening can include the taking of employee temperatures as they arrive each day but must comply with California's Consumer Privacy Act (CCPA). See also Disability and Reasonable Accommodations FAQs. According to the EEOC, additional screening can include other forms of testing but cautions tests should be accurate and reliable taking into consideration, ”the incidence of false positives or false negatives with a particular test.” The EEOC was quick to note that accurate testing only reveals if the virus is currently present and a negative test does not mean the employee will not acquire the virus later. Exercise care in selecting a test to use, particularly in light of well-documented issues with test accuracy.

Employers who choose to implement testing should consider the following:

· Just as with temperature screening, screening/testing for COVID-19 must be conducted on a nondiscriminatory basis, which likely means that all employees entering the worksite must be tested.

· Assuming the results of such testing are retained, they need to be retained as confidential medical records according to the ADA's requirements.

· Any screening, test or inquiry that is broader then necessary to address the potential direct threat is prohibited.

· Although unlikely, it is possible that an employee could have a medical condition that could require the employer to determine whether it can provide the employee with an accommodation, such as making available an alternative testing method to the (likely nasal swab) method being used.

· Employers will need to consider how to handle an employee's refusal to submit to a test. For example, the employer could bar access to the worksite for an employee who refuses to cooperate.

· Being aware that there will be an obligation under wage and hour laws to pay non-exempt employees for time spent waiting to be tested, as well as time spent waiting for the results of the test, assuming the employee will not be admitted to the workplace until the employer has the results.

· Requiring employees to consent in writing to the screening, including, but not limited to, acknowledging how test results will be used and how results will be stored as required by the California Consumer Privacy Act. See Disability and Reasonable Accommodations FAQs

· Determining when and under what conditions an employee who tests positive for COVID-19 will be able to return to the workplace. For example, is a subsequent negative test sufficient? Two subsequent negative tests?

· Weighing the implications of a positive test result as it relates to addressing potential exposure in the workplace (e.g., if the employee was at work in the days leading up to the date of the positive test).

Note that the DFEH has not yet issued guidance approving the use of COVID-19 diagnostic tests although it has approved the nondiscriminatory practice of temperature taking. If you are considering implementing a testing program in California, employers are strongly advised to consult their employment attorneys before doing so.

ACTIVELY ASSESS AND MONITOR POLICY COMPLIANCE

It's critical employers not only implement policies and practices but monitor them to insure they continue to be effective as the situation changes. Useful ways to monitor compliance include training, retraining, observation, inspection, updates to policies and practices, and correction of hazards and non-compliant behaviors. These efforts should be documented thoroughly should there be a complaint to OSHA or CalOSHA, OSHA or CalOSHA inspects the facilities, and to defend against any discrimination or whistleblower type actions from employees.

AMEND POLICIES AND PRACTICES AND REMAIN FLEXIBLE

As the pandemic unfolds and as information and knowledge on the virus, how it spreads, who is most likely to be infected more severely, and treatment options and vaccines are discussed, employers must remain vigilant and flexible in how they enforce, amend and react to these changes.

If a second wave of illness occurs, or additional guidelines are released, employers should be at the ready to adopt to these changes and to implement necessary policy changes in the workplace.

OSHA AND CalOSHA 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 recordkeeping requirement, all employers must report certain serious injuries or illnesses. To determine which employers are subject to the recordkeeping requirement 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 it is for the businesses use and is reported to OSHA or Cal/OSHA only as statistics unless certain criteria is met or if OSHA or Cal/OSHA requests the information. In California covered injuries and illnesses are recorded on Log 300. An in depth review of OSHA and Cal/OSHA requirements is beyond the scope of this guide. Employers are encouraged to review OSHA AND CalOSHA websites for further details on record keeping and reporting.

Determining whether COVID-19 must be recorded or reported is not easy as clear guidance has not yet been developed and the difficulty in determining whether the virus was contracted at the workplace.

RECORDABLE INCIDENTS

Cal/OSHA and OSHA both agree that employers must only record cases of COVID-19 if all of the following are met:

· The case is a confirmed case of COVID-19;

· The case is work related, as defined by 29 C.F.R. §1904.5; and

· The case involves one or more of the general recording criteria set forth in 29 C.F.R. §1904.7 (meaning 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…” (8 C.C.R. section 14300(5)(a)). The regulation provides a number of exceptions for illnesses that occur in the work environment, but are not work related. Notably one 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” –this illness is not recordable. (8 C.C.R. section 14300.5(b)(2)). However, determining where, when and how an individual contracted COVID-19 is nearly impossible and Cal/OSHA does not provide clear guidance. For cases where “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. (8 C.C.R. section 14300.5(b)(3)). This means an employer in a high-risk environment – a hospital or first responder – is more likely to have an employee infected through work as opposed to an office worker who is teleworking. Moreover, if multiple employees contract the illness it is also more likely the infection occurred 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.” (8 C.C.R. section 342(a)). 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…” (8 C.C.R. section 330(h). 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’.

As a result of confusing and conflicting guidance, a prudent California business should consider making a telephone report or at a minimum, seek advice from a Cal/OSHA in-take officer, about whether the infection is reportable. The decision on whether the illness was work-related has far reaching consequences and therefore should be made in consultation with an experienced OSHA attorney and/or a workers’ compensation attorney. By taking some action, a California business potentially can avoid an OSHA citation or penalties.

POTENTIAL CONSEQUENCES OF NON-COMPLIANCE WITH OSHA AND CalOSHA REQUIREMENTS

OSHA and CalOSHA not only have inspection and audit rights, they have the authority to impose significant penalties and even shut doewn and employer's business. The following are all possible consequences of non-compliance:

· OSHA and Cal/OSHA inspections. These inspections can occur as the result of employee complaints or the result of the report of serious illness or injury which may include multiple incidents of COVID-19 in the workplace;'

· Stop work orders and red tags if the inspection finds imminent hazards;'

· Cal/OSHA monetary penalties for one “serious” citation can be over $10,000 without penalty enhancements;'

· Potential 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 are also distinct consequences of an employer's failure to take its responsibilities for assessing risk, determining best practices to protect the health and safety of employees and implementing effective policies and practices.

RETALIATION IS PROHIBITED

It is anticipated that the COVID 19 pandemic will result in an uptick in workplace health and safety complaints. Employers should be cautious in how they respond to employee health and safety complaints. It could be considered retaliatory to take adverse action against any employee because they made a health and safety complaint.

Employees who make a good faith oral or written complaint to the employer, the employer’s representative (like a union rep), or governmental agencies that they believe their workplaces are not safe are protected from retaliation even if their complaint turns out to be unfounded. California Labor Code section 6310.

Practice tip: Employers should consider how they respond to an employee who wants to stay home because they fear the workplace is unsafe. If you believe you have adequately implemented policies and procedures comply with OSHA, Cal/OSHA and CDC guidelines, you may choose to tell the employee the leave is not authorized. However, do so with caution. If you are unsure if your policies and procedures are fully compliant with federal and state guidelines you may consider approving the absence. However, if you grant the request of one employee you may be required to grant the request of all employees. Granting the employee’s request to remain at home this may be the better solution especially if the workplace has a higher risk of exposure, multiple employees have contracted COVID-19 and/or the individual is at higher risk of developing complications from the illness.

CONSIDER ESTABLISHING A PANDEMIC COORDINATOR OR PANDEMIC TEAM

The American Medical Association has predicted there is a 75% chance a second wave of COVID-19 will return 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 anticipate a second wave and develop contingency plans to deal with potential new stay at home orders or enhanced social distancing requirements.

As part of employer development of return to work plans, a pandemic coordinator and/or team with defined roles and responsibilities for preparedness and response planning should be put in place. The size of the team and the responsibilities should reflect the level of risk the business faces with respect to potential or actual COVID-19 exposure. As explained above, certain businesses are considered a very high-risk, while others are low-risk. Therefore, in a hospital setting, an entire pandemic team might be appropriate whereas in an office setting, a pandemic coordinator would be sufficient. Employers should consider including staff members with expertise and all equal employment opportunities laws be included on the team or at least consulted in the planning. In addition, if the employer is large enough, employees with disabilities can also be included in planning discussions.

Although employers are prevented from asking an employee to disclose if he or she may be more susceptible to complications from COVID-19 or to question whether the employee has a compromised immune system or a chronic health condition that may make them more susceptible to COVID-19, an employer does have ways to identify which employee may be likely to be unavailable for work in the event of a pandemic. Employers may make inquiries that are not disability-related. An inquiry is not disability-related if it is designed to identify potential non-medical reasons for absence during a pandemic. For example, an employer may ask about issues related to public transportation should it become unavailable during a pandemic. However, the non-medical reasons must be on an equal footing with medical reasons. The inquiries should be structured so that the employee gives one answer of “Yes” or “No” to the whole question without specifying the factors that apply to him or her. The answer need not be given anonymously. The EEOC has provided an ADA-compliant pre-pandemic employee survey that would not be an improper request for medical information. https://www.eeoc.gov/facts/pandemic_flu.html. See the approved survey below:

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 any of the following 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 fall 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 who are concerned about staffing levels if a second wave of the illness causes absenteeism 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 the survey is not discriminatory and you are not inadvertently violating disability or privacy rights of employees.