Employer’s Guide to Reopening During the Coronavirus Pandemic

Rema A. Ina By Rema A. Ina

States are reopening after the Coronavirus forced them to shut down and issue shelter-in-place orders. Opening is good for the economy, but welcoming back employees while the virus continues to spread is no easy task. Below are some things employers should be mindful of:

  1. State Mandated Procedures
    Most states have issued guidelines and mandates that businesses must follow if they reopen. To find a copy of Ohio’s guidelines for your specific sector, click here. In addition to the specific guidelines for each sector, all businesses are required to follow the same five protocols: (1) Wear face masks; (2) Conduct daily health assessments; (3) Maintain good hand washing and sanitizing hygiene; (4) Clean and sanitize the workplace; and (5) Practice social distancing.
  2. Paid Leave for Sick Employees
    Although businesses are reopening, COVID-19 is still here and employees may contract the virus. In the event that an employee exhibits symptoms of the illness or is told by a health care provider to self-quarantine, the employee may be eligible for two weeks of paid sick leave under the Families First Coronavirus Response Act (“FFCRA”). Employees are also eligible for this leave if they are subject to a government quarantine order, are caring for an individual who is quarantined, or are caring for child whose school or day care is closed. Employees who are caring for a child whose school or day care is closed may also be eligible for up to 12 weeks of paid Family and Medical Leave Act (“FMLA”) leave. Employers are eligible for a refundable tax credit for funding this leave.The purpose of the Act is to ensure that employees do not have to choose between their health or protecting family members and receiving a paycheck. The leave afforded under the FFCRA is mandatory (subject to certain exceptions). However, the paid sick leave is limited to two weeks total per employee. So if an employee uses the sick leave due to their own illness, they cannot use another two weeks of FFCRA sick leave if they later have to stay home to care for someone who is quarantined. The same is true of the FMLA under this leave. It is 12 weeks maximum. This is combined with traditional FMLA leave if applicable, not in addition to it. As with all FMLA leave, you may ask employees to certify their need for the leave, such as providing a letter from the daycare announcing it is closed due to COVID-19.
  3. When an Employee is Sick
    If one of your employees does contract the virus, notify your local health authorities. Deep clean the shop/floor and sanitize the common work areas and the area where the ill person may have visited. The CDC recommends cleaning the affected work area with an EPA registered house-hold disinfectant. You can find a list of such disinfectants here.Work with your local health department to identify potentially exposed individuals so that there can be appropriate contact tracing. Your local health department should conduct the contract tracing. While the ill employee’s health information should be kept confidential, people who have been potentially in contact with the ill employee may be notified that they have been in contact with an employee who tested positive for COVID-19.
  4. ADA Considerations
    As an employer, you have a right to protect your employees from the spread of COVID-19 in your business. You may take your employees’ temperatures and ask your employees if they have experienced COVID-19 symptoms. If an employee is on leave due to COVID-19, you may require a note from a doctor to allow the employee to return. You may also administer a COVID-19 test to your employees before you allow them to return to work.As with all employee health information, you must keep your employee’s COVID-19 information confidential. Employees’ medical information should be kept in a file separate from their personnel file to allow for the information to remain confidential. You should keep an employee’s COVID-19 information in that same medical file.Employees who are at a higher risk of contracting COVID-19 due to age or pre-existing conditions may ask for a reasonable accommodation during this time. “In general, an accommodation is any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.” A modification or adjustment is “reasonable” if it “seems reasonable on its face,” and is “feasible” or “plausible.”For example, if it is possible for the employee to work remotely, that option should be utilized. If it is not possible for the higher risk employee to work from home, consider using plexiglass or other barriers to further protect the employee from potential exposure if possible. Another option may be to station the employee in an area away from others.

    However, the employer does not have to grant the accommodation if it creates an undue hardship for the employer. “Undue hardship” means significant difficulty or expense and focuses on the resources and circumstances of the particular employer in relationship to the cost or difficulty of providing a specific accommodation.

    As with all policies, it is important that you implement these procedures in a consistent way equally among all employees.

  5. Conclusion
    As we all adapt to the “new normal,” information is constantly changing and new policies are being created. Be sure to stay up-to-date on the latest CDC and state guidelines. If you ever have any questions regarding these and other workplace COVID-19 issues, do not hesitate to give us a call.