Client Alert: Returning to Work During the COVID-19 Pandemic
Employers and employees alike have wondered when life will return to normal and what will normal look like. While there is no one answer, returning to work will be a gradual process and normal may not look like it once was. As states begin to reopen, the Center for Disease Control (“CDC”) and individual states have started to release guidance as to when businesses may/should reopen and what procedures will need to be in place to ensure the safety of their employees. This MARC alert will discuss the CDC’s recent guidance on when and how to reopen, the “New York Forward” reopening mandate, as well as New York City screening guidelines and recommendations, all of which can and should also be utilized by New Jersey businesses.
When to reopen?
The CDC has published a workplace decision tool which provides businesses with guidance as to whether they should reopen. Key to this decision is a consideration of whether reopening is appropriate under your state and/or local government’s current orders and whether your business is prepared and willing to protect its employees. Any business considering reopening should have in place a health and safety action plan (now, required by law for New York employers, a template of which, discussed below, can be used as a source for all businesses.)
What does the CDC recommend if you open your business?
If you are planning to open your business, it is important to consider the safety and wellbeing of your customers, employees and visitors. The CDC has issued, and continues to update, guidance on how to prevent and reduce the transmission of COVID-19, CDC COVID-19 website, and state and local health officials are issuing similar guidance on a routine basis. It is imperative that you continually monitor these regulations, guidance and recommendations as they continuously change and evolve.
The CDC recommends businesses:
- Encourage sick employees to remain home until the criteria to discontinue home isolation are met, in consultation with healthcare providers.
- Consider using questionnaires, daily in-person or virtual health checks for COVID-19 symptoms, and temperature screenings prior to employees entering your business. Make sure to follow guidance regarding confidentiality of medical records from health checks and conduct health screenings as privately as possible to prevent stigma and discrimination in the workplace. Of course, businesses are cautioned against making determinations of risk based an employee’s protected class (e.g., race, religion, gender, age, etc.).
- Intensify cleaning, disinfecting, and ventilation.
- Encourage social distancing and enhance spacing between employees (including through physical barriers, changing workspace layouts, encouraging telework, closing or limiting access to communal space, staggering shifts and breaks, limiting large events).
- Identify where and how workers might be exposed to COVID-19 while at work and use appropriate combinations of controls from the hierarchy of controls to limit the spread of COVID-19, including engineering controls, workplace administrative policies, and personal protective equipment (PPE) to protect workers from the identified hazards.
- Conduct a thorough hazard assessment to determine if workplace hazards are present, or are likely to be present, and determine what type of controls or PPE are needed for specific job duties.
- Encourage workers to maintain social distancing and wear a cloth face covering at work if the hazard assessment has determined that they do not require PPE, such as a respirator or medical facemask for protection.
- Take action if an employee is suspected or confirmed to have COVID-19. Wait 24 hours before cleaning and disinfecting to minimize potential for other employees’ exposure. During this waiting period, open outside doors and windows to increase air circulation in these areas. Businesses should follow the CDC cleaning and disinfection recommendations.
- Establish a response plan if an employee becomes sick.
- Send the affected employee home immediately.
- Evaluate whether other employees should be sent home.
- Clean and disinfect.
- Inform employees of their possible exposure to COVID-19 in the workplace, but maintain confidentiality as required by the Americans with Disabilities Act.
- Most workplaces should follow the Public Health Recommendations for Community-Related Exposure and instruct potentially exposed employees to stay home for 14 days, telework if possible, and self-monitor for symptoms.
- Train employees on health and safety protocols.
- Educate employees about steps they can take to protect themselves at work and at home (e.g., clean frequently touched surfaces, avoid touching your face, use hand sanitizer, wash your hands for at least 20 seconds, cover your mouth when coughing or sneezing, wear a face mask when in high community spread locations, avoid using the phones and computers of others, etc.).
- Consider telework for employees who use public transportation or otherwise consider incentivizing employees to use transportation which minimizes close contact with others (e.g., biking, walking, driving alone).
- Identify and appoint a workplace coordinator who will be responsible for COVID-19.
- Implement flexible sick leave and supportive policies and practices.
- Review and revise human resources policies to make sure that your policies and practices are consistent with public health recommendations and with existing federal, state and local workplace laws including ones recently enacted to combat the COVID-19 pandemic (e.g., attendance/PTO policy, leave policies, travel policy, telecommuting policy, in-office policies, etc..)
- Connect employees to employee assistance program resources, if available, and community resources as needed.
- Protect employees at higher risk for severe illness through supportive policies and practices.
- Monitor employee absences and have flexible leave policies and practices. Determine how you will operate if absenteeism spikes.
- Consider improving the engineering controls using building ventilation systems (e.g., increase ventilation rates, maintenance of systems, increase outdoor air ventilation, etc.).
- Provide your employees, customers and visitors sufficient ability to clean their hands regularly, especially after making contact with high touch areas, after sneezing/coughing, etc.
- Modify travel and commuting practices and promote telework.
- Limit employee non-essential travel and large gatherings
- Regularly communicate and monitor developments with local authorities and employees.
What does New York Forward mean for my business?
New York Forward (“NYF”) was established by New York Governor Andrew M. Cuomo’s Executive Order 202.31, which authorized the phased reopening of non-essential businesses. The Governor’s Executive Order has been supplemented by Frequently Asked Questions and industry specific guidance on the New York state website. NYF mandates all employers meet certain obligations, the most significant of which is a COVID-19 health and safety plan for employees and the public. Employers should consult their industry specific guidance when preparing their Health and Safety Plan to ensure compliance with NYF. Importantly, NYF applies to reopening non-essential and essential business which have continued to operate during the stay at home orders. New York has provided businesses a template to follow while developing their Health and Safety Plan. At a minimum, employers must agree to:
- Develop physical distancing protocols including:
- Limiting indoor workforce presence to 50 percent of the maximum occupancy in certain industries;
- Restricting in-person visitors;
- Adopting social distancing practices (e.g., six feet of separation, face coverings);
- Posting distance markers in certain areas;
- Minimizing in-person gatherings;
- Limiting the occupancy of tightly confined spaces (e.g., elevators) to one person at a time, if feasible, or requiring face coverings if not feasible; and
- Staggering employee schedules to the extent possible.
- Provide PPE, including face coverings, gloves where appropriate, and training on the wearing, handling and caring for PPE;
- Create hygiene and cleaning protocols (i.e., providing handwashing stations, hand sanitizers, conducting regular cleaning and disinfection of the facility, maintaining a cleaning log and limiting shared equipment (e.g., phones, tools));
- Implement communication practices (i.e., signage communicating safety and hygiene plans, policies and practices to employees, visitors and customers);
- Create a COVID-19 screening process at the beginning of an employee’s workday and for “essential visitors” (e.g., temperature checks and other contact/symptom questions including questionnaires);
- Adopt contact tracing protocols, including notifications to government officials and at-risk employees when an employee tests positive for COVID-19. Employers will also be required to maintain a continuous log of “every person, including workers and visitors [but not necessarily customers], who may have close contact with other individuals at the work site;”
- Designate a “site safety monitor” to oversee your Health and Safety Plan;
- Post the Health and Safety Plan in a conspicuous location at the workplace; and
- Ensure that an “owner or agent” of the business submits the Health and Safety Plan affirmation form, available here, stating that they have read the NYF guidance and understand the business’s obligation to operate in accordance with the same.
New York City has Provided Valuable Guidance Regarding Employee Screening
The New York City Department of Health created a webpage dedicated to assisting NYC businesses reopen, NYCDOH COVID-19 Resource Page. Amongst numerous other helpful items, the site includes a COVID-19 Symptom Screening Tool Sample which includes a sample questionnaire, a COVID-19 Employer Health Screen Review Documentation Template, a sample of how businesses can document their daily health screening assessments, and a Cleaning and Disinfection Log Template, a log of how businesses can show they are complying with the requirement to clean and disinfect daily. Key points of the NYC screening guidance include the following:
- Use the sample tool in the way that makes sense for your workplace, but also consider the following: call employees each workday before they leave home to ask the screening questions; set up an automated phone line that allows employees to indicate yes/no and have someone monitor the line to ensure compliance; issue an auto-generated email or survey that enables a response; or designate a screening area and distribute the screening questions on paper to employees when they arrive for work.
- If written forms are used, they should not identify the employee by name.
- NYS requires documentation that health screenings have occurred.
- With regard to screening safety protocols:
- Employees must maintain at least 6 feet of distance from others while awaiting screening.
- Screeners and employees must wear face coverings if they can medically tolerate them. If an employee cannot medically tolerate a face covering, the employer should consider a reasonable accommodation (such as having that employee complete a written screening survey rather than an in-person screening).
- Screen in a location that is not a confined space (for example, do not use a small office with a closed door).
- Design a way to screen that prevents others from hearing what is being said and to minimize others from observing screenings.
- Incorporate physical distancing (maintaining at least 6 feet between screeners and others), or physical barriers, such as a plexiglass barrier, to minimize the screener’s and employee’s exposure during the screening.
- All information collected from employees must be kept confidential and can only be maintained in the employee’s medical or health file, in the same manner as the employer maintains medical notes for leave purposes. These records should be kept separate from the employee’s personnel file.
- If temperature checks are used, make sure to follow these safety protocols:
- Use a non-contact thermometer (such as an infrared forehead thermometer or infrared scanner).
- Do not use oral (inserted into the mouth) or tympanic (inserted into the ear) thermometers.
- The person using the non-contact thermometer should strictly follow the manufacturer’s instructions for use.
- When non-contact thermometers are used and the screener does not have physical contact with an employee, gloves do not need to be changed before the next check.
- Screening areas should have a supply of alcohol wipes to sanitize equipment that inadvertently comes in contact with employees. Clean after each employee is screened if there is contact.
- At this time, antibody tests for COVID-19 cannot be used to detect whether someone is currently sick or infected. It is also not yet known whether a positive antibody test means that someone is protected from getting COVID-19 again. Antibody tests should not be used to decide whether someone should or should not work.
- Responsible Parties must immediately notify the State and local health department about a positive COVID-19 case. You can email the NYC Test and Trace Corps at CovidEmployerReport@nychhc.org.
If your business requires assistance implementing the guidance discussed here, MARC’s attorneys are here to help you determine your business’ compliance with such guidance and assist with establishing policies and procedures for implementation.