Even though the COVID-19 pandemic continues to have an effect on daily life, states are beginning to lift stay-at-home orders and businesses are starting to resume operations. As a leader in your business, there’s a lot for you and your organization to consider before you re-open your doors.
In our recent webinar, we discussed how you can take practical steps to comply with various federal, state and municipal requirements for employers operating or re-opening during this pandemic, including:
- Key workplace legal issues including Occupational Safety and Health Administration (OSHA) and Americans with Disabilities Act (ADA) requirements
- Compliance issues for employee screening including temperature checks
- How to respond when an employee has COVID-19 symptoms in the workplace
- Managing employee absences and leaves
- Conducting more HR functions virtually, including 24/7 digital benefits administration and virtual benefits enrollment
Marjory Robertson, AVP & Senior Counsel at Sun Life
Jeff Marquardt, EVP Employee Benefits at Johnson Financial Group
Randy Raymond, SVP Commercial Insurance at Johnson Financial Group
David Manke, VP Loss Control Engineer at Johnson Financial Group
Key Legal Issues
Marjory Robertson discusses workplace legal issues including OSHA and ADA requirements.
You can find additional resources below relating to these legal issues.
Federal, State and Local Re-opening Requirements & Recommendations
Marjory Robertson discusses the requirements and recommendations various levels of government have for re-opening, including social distancing, workplace behavior and cleaning practices. You can find additional resources below relating to this topic.
Accommodating Disabilities and Employee Fears
You will likely have employees that are afraid to come back to work. Marjory Robertson discusses the accommodations you need to think about related to COVID-19 safety and your employees. You can find additional resources below relating to this topic.
Responding to Complaints about Workplace Safety
You need to take any employee concerns seriously and address them. Marjory Robertson discusses the various laws and regulations you need to consider in your responses. You can find additional resources below relating to this topic.
Return to Work Resources
Additional Resources and Templates
By taking workplace preparedness steps such as updating office layouts, encouraging new behaviors and evaluating existing policies, you can help prevent the spread of COVID-19 and protect the health and safety of your employees. To get started, click here to view a checklist of the topics you should consider.
The coronavirus pandemic has challenged employers to plan for how they would respond to a positive test in their workplace. Employers are responsible for handling the situation swiftly to protect the health of other employees while preserving the affected employee’s confidentiality. Click here to view a checklist to help you in responding to a positive COVID-19 checklist.
Employers subject to OSHA should become familiar with OSHA’s interim guidance on COVID-19. Click here to view OSHA’s guidance on how you can prepare for and deal with COVID-19.
As employees’ job duties change or they perform different tasks in the course of their duties, they may move from one exposure risk level to another. Click here to view a guide on how to recognize different level of hazards.
In response to a shortage of disposable N95 filtering facepiece respirators caused by the coronavirus pandemic, OSHA has issued enforcement guidance that allows its Compliance Safety and Health Officers (CSHOs) to use discretion when enforcing certain respiratory protection rules. Click here to view our article.
As employees return to work, you will want to ensure they are aware of and understand crucial components of your post-coronavirus return to work action plan. Click here to view a potential discussion guide to aid your conversation.
State and local laws and orders may provide different or additional requirements for employers regarding masks or face coverings, including guidance on whether employers must provide and pay for them, who must maintain and clean them, and more. Review applicable mandates to ensure compliance. Click here to view a potential communication to employees on face coverings
On May 7, 2020, the Equal Employment Opportunity Commission (EEOC) issued additional information about how employers should comply with the ADA while also observing all applicable emergency workplace safety guidelines during the coronavirus pandemic. Click here to view the EEOC updates.
As you work to re-open your business, you should have a coronavirus action plan in place. To get started, click here to view a sample action plan you can modify to meet your business needs, taking all relevant federal, state and local compliance requirements into account.
As you work to re-open your business, you should have a plan that establishes minimum procedures for determining safe use considerations for respiratory protection in your facility. Click here to view a template program you can modify.
Frequently Asked Questions
If an employee contracts COVID-19 and they have a relatively mild course, it is unlikely that it would be considered a disability under the ADA. A disability is not typically considered to be a temporary condition. But if the employee has a more severe case of COVID-19 that makes them unable to work for a longer period of time, it could be considered a disability that would require accomodations.
You may not be required to test all employees, if you have a business reason to justify one without the other. View our OSHA hazard resource under the Additional Resources and Templates section for more information.
As an employer, you are allowed to inquire as to why the employee has a concern about having their temperature taken. At a minimum, you have the right as the employer to refuse them entry to the building and additional actions up to termination.
Employers need to remember that medical information must be kept confidential as required by the ADA. If the employee does reveal that they have symptoms of COVID-19, or has a confirmed case, the CDC recommends informing the employee's co-workers of their possible exposure to COVID-19 in the workplace. While the employer can not name the employee who has or might have it, employers can direct co-workers to self-monitor for symptoms.
We don't believe that you can single out an employee to take a COVID-19 test. But instead inquire why they are refusing and discuss their concerns. Employers need to be careful to not treat employees differently, because if that employee is in a legally protected category, employers could find themselves in a discrimination case.
The EEOC, which oversees ADA, urges caution here. The employee themselves will know that they have an underlying health condition and will presumably have discussed with their doctor whether they are at risk. An employer should not attempt to determine if an employee is at higher risk or not. Employers must remember that this is not a question of whether or not the employee is more likely to spread the disease, so they are not creating a risk to other people. As long as employers are communicating the risks of exposure, it is ultimately the employee's decision.
This may depend on the state of local orders. Employers should be mindful that some states are mandating masks / facial coverings. Employers should be mindful that if an employee has an ADA accommodation for not wearing a mask, they cannot disclose the accommodation with other employees.
If an employer has employees who are uncomfortable with client visits, they should explore if there are alternative methods of communication that can be utilized. Can your employees conduct client meetings over the phone or online?
If employees are required to be onsite at the client's place of business, we recommend employers establish protocols for employees to follow, such as:
- Provide masks for employees to wear
- Provide hand sanatizer and disinfecting wipes
- Instruct employees on safety protocols related to social distancing and personal hygiene (hand washing)
We recommend careful evaluation of the need for employees to be onsite with clients during this time and suggest employers explore all other avenues of communication. If an employee refuses to be onsite at a client's place of business, we suggest talking with the employee to understand their concerns. If you can accommodate the employee and have someone else visit the client site, we recommend allowing that.
This depends on the state of local orders. Under the ADA, if an employee asks for an accomodation for a reason that isn't obvious, employers can ask for medical documentation. Depending on what the employee is asking for in regards to accomodations, such as working from home, employers may be able to accomodate that.
If the employee doesn't want to work at all, they could use their available leave until it runs out. (There could be additional leave available via federal or state guidelines.) Once the employee exhausts the leave, employers may take disciplinary action, up to and including termination.
Employers have an obligation to accommodate an employee's religious or cultural practices. The CDC includes cloth coverings made at home in their recommendations. Employers may violate an employee’s religious or cultural practices by requiring an additional mask or asking the employee to remove the head covering to prove that a mask is being worn. There is a definitive difference between a mask and a facial covering. A mask is usually defined as either a filtering respirator such as an N95 or a specialized medical grade or surgical mask. A face covering is a cloth or other type of material that covers a person's mouth and nose.
Johnson Financial Group and its subsidiaries do not provide legal or tax advice. Please consult your attorney or tax advisor with respect to your personal situation.