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Employer’s Guide to Phase 1 of the Re-Opening

E-mployment Alert

Smart Summary

  • Employers need to start planning for who needs to return and where they will work.
  • Reasonable accommodation will continue to be important, and effective telework policies can create a viable solution to address quarantine and other issues.
  • When travel resumes, employers will need to focus on communication with employees to keep everyone safe and in compliance.

Over the past few days, Governor DeWine, Lieutenant Governor Husted and President Trump have spent considerable time discussing reopening. While the precise plans for Ohio have not yet been disclosed, the president unveiled an 18-page phase-in plan called “Opening Up America Again.” While it does not carry any actual obligation for employers, the recommendations it sets forth should be considered as they will likely be incorporated into Ohio’s guidelines.

The president’s plan outlines three “phases” of reopening. At each phase, however, employers are advised to take a number of precautions, including observing the six-foot social distancing guideline, checking employee temperatures, and rigorously disinfecting all areas.

Phase 1 of the reopening asks employers to make five key considerations:

  1. Encourage telework whenever possible and feasible.
  2. Return people to work slowly in phases.
  3. Close all common areas (conference rooms, lunch and break rooms, etc.) or at least strictly enforce social distancing.
  4. Minimize non-essential travel and observe CDC isolation periods following essential travel.
  5. Provide special accommodations for personnel who are members of “vulnerable populations,” defined as the elderly and people with serious underlying health conditions.

With these recommendations in mind, employers should immediately begin analyzing four actions prior to reopening:

Plan for Who Needs to Return and Where

Review Physical Space for Social Distancing
Employers should immediately review their physical workspaces and determine how to implement social distancing, understanding that compliance will likely only be achieved with a reduced workforce on site. For those who will come into the office, consider how you will maintain six feet of separation at all times; you may need to take advantage of closed common areas and temporarily relocate employees to maximize your space. Employers should also review how people enter and exit the facility.

As temperature checks will be necessary, plan and communicate your processes now. This can be either at-home monitoring (and provided to HR) or provided by you as employees arrive.

Focus on Vulnerable Populations + the FFCRA
Employers should also review their workforce to determine whether any employees scheduled to physically return are members of “vulnerable populations.” Don’t be surprised when these employees receive directives from health care providers not to return to work and to remain in quarantine. If so, the employer should discuss with the employees whether they intend to return and what the consequences of not returning shall be.

Remember that employees who are advised to quarantine are entitled to two weeks paid leave under the FFCRA and unemployment benefits under the CARES Act. Employers should also consider whether an accommodation is required and whether allowing the individual to remain off work is reasonable.

Navigate the New Telework Landscape

Telework sits firmly at the nexus of two of President Trump’s recommendations, including that employers should (a) encourage telework whenever possible and feasible, and (b) strongly consider special accommodations for elderly employees and employees with serious underlying health conditions.

Incorporate Teleworking Agreements
Of course, many employers have already made significant changes to their workforce to combat COVID-19, including enabling remote work. However, many also made these changes rapidly and viewed them as temporary solutions.

Since it is unlikely a vaccine for COVID-19 will be widely available before 2021, there will be many employees for whom the best work environment (from a health perspective) is their homes. As a result, employers should consider incorporating formalized long-term teleworking agreements. These agreements identify, among other things, the physical work area for employees, the working hours, and how production will be measured. Remember also that telework can be done on a part-time basis, meaning an employee may only come in on certain days or at certain times.

Use Telework as a Reasonable Accommodation
Further, the EEOC has issued guidance confirming that employers are not required to accommodate employees just because they are at higher risk; the employee must be disabled. The threshold for disability, however, is low, and if an employer verifies that an employee has a disability that puts the individual at a higher risk of complications or exacerbates their condition, the threshold is met. If you think an accommodation is necessary, you should engage in the interactive process to identify an accommodation that does not pose an undue hardship. Telework will likely be one such option and should be discussed.

Set Clear Expectations for Travel

Employers should expect continued restrictions on visitors for some period of time. Likewise, they should remember that the response to the virus is being handled largely at the state level, which means the testing, reporting, restrictions and tracking will vary widely.

Have Clear Conversations Regarding Travel
Thus, employers should make sure that any employees who travel for work will be able to conduct the necessary business activities at their destination. Also, make sure you have updated policies setting forth exactly what is expected of the employee after returning from the trip. If this includes quarantine, that should be discussed in advance. He or she should also be apprised of current regulations governing the travel destination, so that proper arrangements can be made for the employee to comply with those local rules.

Make PTO + Other Policy Updates

Many employers have moved to the “one pot” PTO system, with no distinction between time taken for illness versus time taken for vacations. This has probably worked well for many years, but it could have unintended consequences now.

Think about it. With this system, employees are more likely to suck it up and come to work when they are sick so that they can save that time for the fun stuff later. That’s certainly not what you want in the midst of a global pandemic. Of course, you can send employees home if they are sick, but there is understandably going to be hesitation in doing this when managers know that it means taking time away from employees that they set aside months ago to use on a beach vacation.

Designating a certain amount of days exclusively for illness encourages employees to stay home when they aren’t feeling well and helps managers make the quick decision to send someone home without regrets. From an administrative perspective, you’ll already have to track FFCRA leave now, so what’s one more pot of PTO?

Just because the stay at home order may be lifted doesn’t mean COVID-19 is going anywhere. There will heightened scrutiny on anyone who is sick with flu-like symptoms for at least the next six months. So take a look at your policies, PTO or otherwise, and ask yourself if they work in this new world for the next year. And don’t forget: some of your policies might be out of date. We covered some recent decisions at our annual labor seminar that may impact various policies. If you’re slow, now is a great time to make those updates for when employees return.

Brendan Feheley is a director and chair of Kegler Brown’s Labor + Employment practice where he is working with business owners and their HR leaders to navigate the COVID-19 pandemic. He can be reached directly at [email protected] or (614) 462-5482.

Danielle Crane is an employment lawyer with Kegler Brown, advising clients on human capital strategies to help navigate the COVID-19 pandemic and prepare for re-opening. She can be reached directly at [email protected] or (614) 462-5444.

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