Returning to Work: Reopening the Workplace in a COVID-19 World
Although the timing, scope, and conditions for New York businesses to reopen currently remain uncertain, there is no doubt that once Governor Cuomo rescinds Executive Order 202.8 (which ordered 100% on-site workforce reduction for all non-essential businesses in New York) all businesses that are able to do so will reopen. Moreover, it seems apparent that reopening will occur long before the general threat of COVID-19 infections has completely subsided. That being the case, employers across New York will be facing some significant new issues and challenges as they resume operations while taking steps necessary to protect the health and safety of their employees. This is a brief overview of what steps employers should consider taking now as they prepare to reopen their workplaces, and of information that is available to employers to assist them in doing so.
Employee Health and Safety Issues
Section 654 of Title 29 of the U.S. Code requires all employers to furnish to their workers “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” While the Occupational Safety and Health Administration (OSHA) has not adopted any regulations specific to addressing COVID-19-related risks, certain existing OSHA regulations may apply to employers who, by virtue of their workplace environments (e.g., white collar office spaces), have previously given little consideration to “hazards” that could affect the health and lives of their employees. To assist employers, OSHA has published a comprehensive guide entitled “Guidance on Preparing Workplaces for COVID-19”. The preface to this Guide makes it clear that it is “not a standard or regulation, and it creates no new legal obligations.” Its stated purpose is to provide “recommendations as well as descriptions of mandatory safety and health standards” that are “advisory in nature” and “informational in content” in order to “assist employers in providing a safe and healthful workplace.”
A full summary of OSHA’s Guide is beyond the scope of this Alert but, unlike formal regulations that can at times be difficult to digest, it is written in plain English and at 34 pages requires no herculean effort to review. We strongly recommend that all employers become familiar with OSHA’s Guide, in particular the section entitled “Steps All Employers Can Take to Reduce Workers’ Risk of Exposure to SARS-CoV-2” (SARS-CoV-2 is the virus that causes COVID-19 illness). That section of the Guide covers such topics as the necessity of considering where, how, and to what sources of the virus employees might be exposed; consideration of individual worker risk factors (e.g., age, chronic medical conditions); the need for social distancing, and potentially other steps such as staggered work shifts, downsizing operations, delivering services remotely, and other exposure-reducing measures; and the need to emphasize basic infection prevention and infection control practices. The Guide also emphasizes the need for employers to develop policies and procedures for employees to report when they are sick or experiencing symptoms of COVID-19; to enable prompt identification and isolation of potentially infectious employees; and the need to inform and encourage employees to self-monitor for signs and symptoms of illness. The Guide notes that Personal Protection Equipment (“PPE”) (e.g., masks) “may also be needed to prevent certain exposures,” but cautions that “[w]hile correctly using PPE can help prevent some exposures, it should not take the place of other prevention strategies.” The attorneys at Bleakley Platt stand ready to assist employers in devising and implementing appropriate policies, procedures and practices for their individual workplace environments.
We also consider it highly advisable that employers, including those in OSHA partially-exempt industries, document their COVID-19 workplace policies and procedures, as well as their ongoing compliance with them. Such evidence, or the lack of it, may prove to be highly relevant in the event an employee suffers an illness and claims that his or her employer violated its legal duty to provide a hazard-free workplace.
Employers should also consider the effect of recent EEOC guidance on return-to-work issues that employers and employees will face during this transition, including the acceptability of medical examinations, the confidentiality of medical information, and reasonable accommodations under the Americans With Disabilities Act and the Rehabilitation Act.
A Final Thought: Accommodation of Requests to Work From Home
Even after restrictions concerning the presence of on-site employees are lifted, some employees may still request that they be permitted to work from home. Some of these requests will likely come from employees who by virtue of their individual medical conditions may have special fears of returning to the workplace until the risk of COVID-19 infection is more significantly reduced. When such a request comes from an employee with a documented condition that involves a recognized heightened risk to his or her health, there may be a greater burden on the employer to demonstrate why working from home is not a reasonable accommodation.
As the foregoing overview makes clear, employers should be planning now for the day when their workplaces reopen. Developing necessary policies and procedures in advance of reopening will ensure that once restrictions on employees in the workplace are lifted, employers will be ready on Day One to ensure that the health and safety of their employees are protected, and that working on site can resume with a minimum of confusion or disruption. The attorneys at Bleakley Platt welcome the opportunity to assist employers in devising and implementing their workplace practices in a COVID-19 world.