Employer’s Guide for Returning to the Workplace

By Davidson French and Lymari Cromwell

This article is an abbreviated version of an article published by Bass, Berry & Sims on April 28, 2020.  To access the full article, including frequently asked questions relating to returning employees to the workplace, visit https://www.bassberry.com/news/employers-guide-for-returning-to-the-workplace/.

As the U.S. economy reopens in the coming weeks and months, employers are faced with the challenge of bringing employees back to work to a workplace that is drastically different from the one that existed just weeks ago.  While states and cities will have unique requirements and conditions with which employers must comply, they will largely rely on the constantly evolving guidance provided by the Centers for Disease Control (CDC), Occupational Safety and Health Administration (OSHA), and the Equal Employment Opportunity Commission (EEOC).  It will be crucial for employers to comply with the most recent guidance from the CDC, OSHA, public health agencies, and the EEOC as they bring employees back to work and re-open businesses. 

Below is a general overview of current guidance from the EEOC, OSHA and CDC concerning workplace safety, followed by frequently asked questions regarding the return of employees to the workplace in the era of COVID-19. 

The EEOC and COVID-19

The EEOC has stated that the non-discrimination laws that it enforces (e.g., the Americans with Disabilities Act (ADA)) should not interfere with or prevent employers from following the guidance and suggestions from the CDC and state and local public health agencies.  The EEOC has also issued guidance for the interpretation and enforcement of the ADA and the Rehabilitation Act in light of COVID-19.  Significant points are summarized below:

1. Employers may ask employees about virus-related symptoms and may require employees to submit to temperature testing.  Employers may also require employees to report a COVID-19 diagnosis to the employer.
2. Employers may choose to administer COVID-19 testing to employees before they enter the workplace.  Employers should ensure that the tests are accurate and reliable.  Testing is rapidly changing, so employers should check for updates regarding the efficacy of any testing mechanism that they choose to use.  Employers may wish to consider the incidence of false-positives or false-negatives associated with a particular test.  Finally, note that accurate testing only reveals if the virus is currently present; a negative test does not mean the employee will not acquire the virus later. 
3. Employers may require employees with COVID-19 to leave the workplace and/or present medical certification proving fitness for duty before returning to work.
4. Employers may delay start dates and/or withdraw job offers if an applicant tests positive for COVID-19 and/or has COVID-19 symptoms.  The job offer should only be withdrawn if the employer needs the employee to start work immediately.

OSHA Guidance on Preparing the Workplace

OSHA requires employers to comply with existing safety and health standards and regulations promulgated by OSHA or by a state with an OSHA-approved state plan, including the Act’s General Duty Clause, which requires employers to provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm.  OSHA recently issued a thorough set of advisory recommendations and guidelines for employers to consult when preparing workplaces for the effects of COVID-19.    

Employers should consult the CDC recommendations (summarized below) for returning employees to work, as well as the following:

• Require employees to practice social distancing at work (e.g., staying at least 6 feet apart, limiting the number of occupants in offices and/or elevators, requiring office doors to remain closed when occupied, closing lunch and break areas, restricting occupancy and spacing, etc.).

• Staggered arrival and departure times and/or work hours.

• Closing certain stalls/urinals in the restroom to create adequate distance between individuals.

• Limit one person to a vehicle, if possible.

• Install high-efficiency filters and increase ventilation rates in the workplace.

• Designate one person to clock employees in and out of work or record their arrival and departure times if clocking in would otherwise require employees to be in close contact with each other or to touch the same equipment. Forbid sharing of headsets, refrigerators, microwaves, computers, tools, etc.

• Prop open doors to reduce touching of handles.

• Install glass or plexiglass barriers where people have to meet to talk and exchange documents or materials (i.e., at secretarial work stations, customer service desks, etc.).

New COVID-19 Poster from OSHA

OSHA has issued a poster listing steps all workplaces can take to reduce the risk of exposure to coronavirus.  The poster highlights 10 infection prevention measures every employer can implement.  While posting this poster is not mandatory, it may assist the employer in showing that it took good-faith steps to comply with OSHA’s workplace safety requirements.

Good Faith Efforts to Comply with OSHA Standards

In guidance issued on April 16, OSHA stated that it will evaluate whether an employer made good faith efforts to comply with applicable OSHA standards by thoroughly exploring all options to comply.  An employer should be able to demonstrate a good faith attempt to meet the applicable requirements as soon as possible following the re-opening of the workplace.  Where the employer cannot demonstrate its good faith efforts to comply, a citation may be issued.  OSHA has also emphasized that the most current CDC guidance should be consulted in assessing potential workplace hazards and evaluating the adequacy of an employer’s protective measures for workers. 

CDC Guidance on Workplace Health and Safety

The CDC has issued a significant amount of guidance regarding how businesses and employers should respond to the pandemic.  Some key points are as follows:

• If an employee was present at the job site within 48 hours of testing positive, employers should follow the CDC’s cleaning and disinfecting guidelines. Cleaning staff should clean and disinfect all areas used by the ill person, especially frequently touched surfaces.

• If it has been more than seven days since the person who is sick visited or used the facility, additional cleaning and disinfection are not necessary.
• For electronics – such as tablets, touch screens, keyboards, remote controls, and ATMs – consider using wipeable covers.  If there are no manufacturer’s instructions for cleaning and disinfecting electronics, use alcohol-based wipes or sprays containing at least 70% alcohol and dry the surfaces thoroughly.
• Employers should develop policies for worker protection and provide training to all cleaning staff on-site before assigning cleaning tasks (including when to use personal protective equipment (PPE); what PPE is necessary; how to properly put on, use, and take off PPE; and how to properly dispose of PPE).
• Ensure workers are trained on the hazards of the cleaning chemicals used in the workplace per OSHA’s Hazard Communication Standards.

• Comply with OSHA’s standards on bloodborne pathogens, including proper disposal of regulated waste and PPE.