Last week, I shared with you some initial considerations for a safe return to work during the COVID-19 pandemic. Because this is such an important topic, I am coming back to the same topic. This week I focus on providing answers to questions employers are facing now. Here are some important questions you need to answer as you develop a return to work process for your business.
Are you overwhelmed by what it will take to re-open your business? Do you need help thinking through your return to work? I have put together a decision tree to guide you through important decision points for a safe return to work. I am here to help you.
How to keep employees safe in shared workspaces?
Many employees are concerned about bringing back COVID-19 to their families. So, the first decision point is: “Do we have a real business reason for bringing those employees back?”
One way to alleviate the concerns of those who have to return is to communicate proactively with all your employees. Share what new cleaning and disinfecting practices you are implementing in your shared workspaces. Talk about the availability of wipes, physical barriers, and appropriate PPE based on the type of work each employee performs.
The best form of infection control is still physical distancing. Introduce staggered shifts, change the physical layouts. It’s time to be creative! Talk with each person and find out what their concerns are and what they need. For more on this topic, check out last week’s article for pointers on how to engineer your space and practice infection control at work.
Can employees refuse to return to work during the COVID-19 emergency?
First, you have to consider your state and local situation. Are you still under a Stay-At-Home order? Is your business considered essential? Follow the guidelines issued by the Governor and local health authorities for your industry.
Assuming that the orders are being lifted and employees were kept on payroll during the disruption, employees cannot generally refuse to return to work when employers call them back to the workplace. A refusal to return to work could amount to a resignation.
However, employees might be eligible to take paid leave under the FFCRA. For parents caring for homebound children, the 12 weeks of Health Emergency FMLA is an attractive option if a return to the physical workplace is required. Note that the fear of getting sick is not one of the provisions under the new paid sick laws.
Do employees have a legitimate claim not to return to work?
In other cases, employees might have a legitimate claim under the American With Disability Act (ADA). If an employee is immuno-compromised, they probably can request a reasonable accommodation of working from home while the virus is endemic. As always, you need to engage in a conversation to understand the scope of the employee’s limitations. The objective is to find a mutually agreeable solution for productive and safe work. If the employee has worked remotely for several weeks, it might be hard to argue that the continuation of this arrangement would cause undue hardship on your operations. Leave might also be a reasonable accommodation in an ADA situation.
In the case of a valued employee hesitant to return to a shared workspace, consider a progressive return to the workplace using a hybrid solution: working remotely and coming in the office when necessary. It might be required to build up confidence that the workspace is safe to return.
Finally, to avoid possible claims from former employees who refused to return to work. It’s always a good idea to send a return to work letter to each employee. Document what happens next. In most cases, the employee will accept the return to work, accept with conditions, refuse to return or decline to respond within the allotted time frame.
Who will be required to wear a face covering?
CDC is now recommending that individuals wear face masks to slow the spread of the virus. Although non-medical grade face covering might not prevent catching the virus, it is supposed to control the spread from people who are contaminated but asymptomatic.
Until a COVID-19 vaccine is available, it is fair to assume that many jobs will require wearing a face covering. Check if your locality requires employers to provide or pay for all employees to acquire nonmedical-grade face coverings. In any case, providing the PPE needed is probably the best way to ensure compliance.
Be prepared for push backs from employees. Have a written policy on outlining all your positions and what PPE is required to operate safely. Also, consider if and when employees might be allowed to take a break from PPE/mask wearing.
Stay informed to adapt your policy based on employees’ feedback and guidance from public health officials for the next year.
Other new policies required to re-enter during the COVID-19 pandemic
Consider this re-entry after confinement as a new phase in the employment relationship. New policies and practices are required. They might include:
- Daily health certification for all employees when they log-into the network,
- Temperature taking of all visitors, clients, and vendors.
- COVID-19 testing as a condition to accessing the workplace once rapid testing is widely available
- Cross-training the workforce to accommodate more employee absences
Disclaimer: The information contained in this article is a compilation of information gathered through authoritative sources but doesn’t constitute legal advice. I am an HR pro, not an attorney! This based on the best information available as of May 8, 2020