Reopening Businesses during the COVID-19 Pandemic

by Jessica Post

Arizona will begin opening its doors with Governor Doug Ducey announcing that certain retail stores may resume in-store sales May 8 with physical distancing measures in place. While the stay-at-home order will remain in effect until May 15, all signs indicate that Arizona will begin turning up the lights on the economy with dine-in restaurants opening as soon as mid-May. This ramp up will require bringing back employees, understanding new labor and employment laws, creating a plan for reducing the spread of COVID-19, and having a plan for handling the situation when an employee gets COVID-19. Taking all these steps should help reduce the risk of claims from employees and third-party customers. At the same time, reducing the risk of claims will help avoid a PR crisis that could be as devastating as closure due to COVID-19.

Step One – Bringing Employees Back

Many businesses have reduced their workforces through furlough, layoff or paid leave for all or a portion of the time. To start, businesses should review any layoff policies to make sure they comply with them. Businesses also need to consider whether managers made promises to employees during the layoff process (sometimes that happens). After considering layoff policies and any specific promises made by management, businesses should decide which employees to bring back first based on objective factors.

Examples of such factors include first bringing back the employees with the most seniority, the employees with the highest performance reviews (basing this on numerical numbers is the safest), or employees with certain skills that are needed first. A potential pitfall for employers would be to not bring back employees who are over a certain age (e.g., 60) because they are at higher risk of getting seriously ill from COVID-19. Not offering employment to employees because of their age (anybody over 40 is part of the protected class) would violate the Age Discrimination in Employment Act (ADEA).

There is certainly risk in deciding who to bring back, and businesses should consult with counsel and do so in a manner that minimizes the risk of discrimination and wrongful termination claims.

Step Two – Understanding New Labor and Employment Laws

There are new laws in place that may apply to a given employee and his/her ability to work, including the Expanded Family and Medical Leave Act and the Emergency Paid Sick Leave Act. Both of these new laws apply to employers with fewer than 500 employees. Some employees who are asked to return to work are not going to want to return or be able to return for a variety of reasons, including that their children are home from school or they are vulnerable if they acquire COVID-19. Both of these reasons (and others) are protected under the new statutes. In addition, the Americans with Disabilities Act may also apply if an employee is concerned about returning to work because of a pre-existing medical condition. To avoid claims for violating these new laws, businesses need to understand how they work.

In addition, with the increase in the weekly amount of unemployment compensation, employers may find employees not wanting to return to work because they receive more money by being unemployed than by working. For example, an employee who works 25 hours per week for an employer will not be eligible for unemployment in Arizona. Yet that same employee would have received $840 per week on unemployment ($240 under Arizona law and $600 through the CARES Act). Therefore, employers need to understand how unemployment compensation works in Arizona — which is different right now with COVID-19 and the CARES Act — in order to work with employees as business ramps back up.

Step Three – Businesses Need a Plan for Mitigating the Spread of COVID-19

In formulating a plan, businesses should consider the following items. It’s important to understand that each of these issues is complicated and deserves significant thought and discussion with legal counsel. This is a partial list of key issues to consider.

Social Distancing: Companies need to implement social distancing policies. OSHA and the CDC have issued a variety of recommendations for how social distancing can be accomplished in particular industries. At a general level, employees should not work within six feet of each other, if possible. Employers should also think about areas where employees congregate (e.g., a breakroom) and shut down those areas. Employees who are able to telecommute should continue to do so. Businesses need to consider which other steps to take to reduce human-to-human contact in the workplace (e.g., plexiglass, identifying where customers stand, creating walking lanes, et cetera).

Cleaning and Disinfecting: Comprehensive cleaning regimens need to stay in place for the foreseeable future. The CDC recently provided new guidance on cleaning and disinfecting workplaces as part of the reopening process. Businesses should review this guidance.

Employee Hygiene: Businesses need to make good hygiene easy to accomplish. This means encouraging employees to frequently wash hands, providing hand sanitizer in a variety of places, and making sure that bathrooms and sinks remain well stocked with soap. For example, if an employee interacts with a customer and touches the employee’s credit card, the employee should be able to use hand sanitizer after the contact. Employers should post reminders to employees about the importance of best hygiene practices.

Personal Protective Equipment: The guidance on the use of PPE outside the healthcare industry has changed. The CDC now recommends that masks be worn to help prevent the spread of the virus from asymptomatic people. Businesses should consider whether their employees should be allowed to use PPE or be required to use PPE. If an employer is going to require employees to use PPE, OSHA requires that employees be trained on safe use.

Screening Measures: The EEOC has authorized the use of COVID-19 tests before employees enter the workforce. Employers should adopt screening measures. However, they need to make sure to do so in a legally compliant manner because there are a variety of potential legal pitfalls with each different measure. There are a variety of screening measures available to help ensure an employee is not infected and will not spread COVID-19 upon their return to work. They range from taking an employee’s temperature before entering the workplace to requiring employees to fill out certifications before coming to work confirming that the employee doesn’t have a temperature.

Keeping Sick Employees Out of the Workplace: Businesses need to focus on keeping sick employees home. This can be difficult because employees are used to working through illness to keep their paycheck. Nevertheless, it is imperative to keep sick employees out of the workforce or else business owners will see their operations temporarily shut down or potentially find themselves the subject a news story if another employee or customer contracts COVID-19 tracible back to the business. Keep in mind, there are tools to help employees be paid for time while they are home sick or quarantining, including Emergency Paid Sick Leave (which is reimbursed to employers through tax credits) and Arizona Paid Sick Leave. Businesses need to be familiar with these laws.

Step Four – Knowing How to Handle a COVID-19-Positive Employee

Having a COVID-19-positive employee may happen, so businesses should formulate a plan ahead of time to prudently handle the situation. Based on guidance from the Maricopa County Health Department, an employer should take the following actions.

  • Ensure that the employee does not return to the workplace until the employee has had no symptoms for 72 hours without the use of fever-reducing medication. In addition, the CDC also recommends that an employee not return until at least seven days after symptoms began. At this point, Maricopa County’s recommendation is that an employee not be required to provide a negative COVID-19 test. This guidance may change as testing ramps up in the coming weeks.
  • Sanitize and disinfect the workplace as soon as possible.
  • Provide notification to the other employees who may have had contact with an employee that tested positive. This notification cannot identify the employee’s name.
  • Human Resources, a supervisor or an occupational therapist needs to work with the sick employee to find out who the employee had “close contacts” with during the days leading up to being sick. If the contacted (but still asymptomatic) employee works in an essential business, according to the CDC, the employee may continue to work but needs to be screened for symptoms before entering the workplace each day, regularly monitor his/her temperature, wear a mask in the workplace and socially distance at work. If the employee does not work in an essential business, the employee should quarantine for 14 days. The business should work with that employee because Emergency Paid Sick Leave may be available to cover the quarantine period. Alternatively, the employee may be eligible for unemployment for those 14 days.
  • If the COVID-19 illness is work related, it will need to be reported to OSHA. The standard for determining whether an illness is work related has significantly relaxed for businesses by requiring reporting only if there is objective evidence that a COVID-19 case may be work related (e.g., a cluster of cases and no other explanation), and this evidence was available to employers. This relaxed definition of “work related” does not apply to healthcare providers, emergency responders, or correctional facilities.

Step Five – Understanding that Businesses Will Need to Adjust Their Plans

It is important to understand that reopening will not be smooth and that business will need to make adjustments. Customers may be slow to return and employees may not want to return to work, but businesses need to be nimble and make changes to meet the market demand, provide a safe work environment, provide a safe environment to boost customer confidence, and to comply with the constantly changing COVID-19 guidance. It is imperative to continue checking the CDC, OSHA, and state and local health departments’ web pages for up-to-date guidance.

Being diligent and knowledgeable about the guidance and taking steps to protect employees and customers will help businesses reduce the likelihood of employee and third-party claims.

Jessica Post is an attorney with Fennemore Craig. She leads the labor and employment practice group and counsels companies on compliance with labor and employment laws as well as represents companies in discrimination, wage and hour, wrongful termination, and restrictive covenant litigation.

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