Publications

Rethinking Business Operations in the Wake of COVID-19

April 30, 2020

When businesses re-open their doors, their worlds will be different for some time. It will truly be pre-COVID, and post-COVID. For many, the transition into the post-COVID world will be even more challenging than navigating the current shutdowns we are all facing.

In an effort to envision the business world once doors slowly begin to open, we have noted our top eight changes which will impact internal operations on Day One. The changes below are significant – and are surrounded by important legal issues.

  1. Not everyone will return to work on Day One.

On April 16, 2020, the White House provided Guidelines for Opening Up America Again, which outlined gating criteria and guidelines for employers to follow in three-phases. When deciding the timeline for bringing employees back into the workplace, not everyone will be able to show up on day one. Employers will need to consider the extent to which an employee’s job duties requires them to interact with the general public and other conditions affecting an employee’s risk of exposure to COVID-19. Employers should also make sure not to return employees in a discriminatory manner.

  1. The office will not look the same.

The workplace will have to be redesigned. Employers will need to impose appropriate physical changes to minimize exposure to COVID-19. Generally, the Occupational Safety and Health Administration (OSHA) recommends that workplaces install physical barriers, such as clear plastic sneeze guards and install drive-through windows for customer service, in addition to other engineering controls based on workplace exposure risk. Moreover, in addition to requiring their employees to practice social distancing in the workplace, employers should take measures to increase physical space between employees.

  1. Employees will be wearing masks – possibly with your company logo.

Employees will need personal protective equipment (“PPE”) appropriate for the exposure risks. Appropriate PPE may include gloves, face masks, goggles, face shields, and respiratory protection. According to OSHA, PPE must be:

  • selected based upon the hazard to the worker.
  • properly fitted and periodically refitted as applicable.
  • consistently and properly worn when required.
  • regularly inspected, maintained, and replaced, as necessary.
  • properly removed, cleaned, and stored or disposed of, as applicable, to avoid contamination of self, others, or the environment.

Some employees may request a reasonable accommodation under the ADA or religious accommodation under Title VII from wearing PPE as required by the employer. In these circumstances, employers should provide the modification or an alternative if feasible and not an undue hardship on the employer’s business under the ADA or Title VII. Examples of reasonable accommodations under the ADA are non-latex gloves, modified face masks for interpreters or others who communicate with an employee who uses lip reading, or gowns designed for individuals who use wheelchairs. An employee might also request modified equipment due to religious garb.

  1. Employees will receive a revised handbook with policies.

The old handbook will not be good enough. Employers should make sure to update their employee handbooks or create addendums addressing:

  • the expanded Family Medical Leave Act;
  • Emergency Paid Sick Leave;
  • state-specific COVID-19 related leave;
  • social distancing in the workplace;
  • expectations and requirements for teleworking;
  • standards for cleaning and disinfecting personal work spaces; and
  • staying home when experiencing flu-like or COVID-19-associated symptoms.
  1. You will ask employees about their health.

Historically employers have been justifiably concerned with asking employees health-related questions. The Equal Employment Opportunity Commission (“EEOC”) has found that the COVID-19 pandemic presents a “direct threat” in the workplace – a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” Accordingly, employers may make disability-related inquiries and require medical examinations related to COVID-19 with the goal of maintaining workplace safety. Employers may ask employees if they are experiencing COVID-19 symptoms as identified by the Center for Disease Control (CDC), other public health authorities, and reputable medical sources.

That said, employers should not ask employees to disclose whether they have a compromised immune system or other chronic health conditions as these are improper disability-related inquiries under the Americans with Disabilities Act (“ADA”). However, employers may make non-disability-related inquiries to identify potential non-medical reasons that employees may not be able to report to the workplace.

  1. A simple doctor’s note will not be good enough.

Keeping tabs on employee health will be vitally important. Although under the ADA, an employer may request a note from an employee’s doctor certifying fitness to return to work during a pandemic, employers should not rely on a doctors’ note to protect their workforces. Instead, employers should implement infection control practices consistent with the guidance of the CDC to prevent transmission of COVID-19 in the workplace, and may be liable for their failure to do so. Moreover, the CDC discourages employers from requiring notes from healthcare provider’s offices because they may be extremely busy and unable to provide timely documentation.

You may need to have a thermometer at the door. Along with infection-control practices, employers should implement temperature screening protocols and may administer tests to detect the presence of the coronavirus. Employers should carefully construct temperature screening and testing protocols to comply with the requirements of the ADA.

  1. Some employees may remain at home – without consequences.

Some employees, including those who are immune-compromised or who have chronic health conditions, may request an accommodation under the ADA to work from home. Employers should accommodate these requests to the extent an employee working from home does not create an undue hardship on the employer’s business.

  1. You will really have to police compliance with health and safety rules.

Employers should designate a person or team to monitor guidance from state and local health departments and agencies, the CDC, OSHA, and the EEOC and implement responsive policies and protocols. These agencies’ guidance may change as the spread and severity of COVID-19 evolves. Employers should regularly communicate updates and expectations to employees.

Conclusion

A careful review of internal operations must be the first step in planning the post-COVID-19 world. A company’s operations will look dramatically different in the near term, which will require a careful review of policies and protocols, all of which will require a second look.


For more information on this issue or other employment matters, please contact:

Carol M. Goodman at +1 212 592 1465 or [email protected]
Ronald J. Levine at +1 212 592 1424 or [email protected]
Jalise Burt at +1 212 592 1590 or [email protected]

© 2020 Herrick, Feinstein LLP. This article is provided by Herrick, Feinstein LLP to keep its clients and other interested parties informed of current legal developments that may affect or otherwise be of interest to them. The information is not intended as legal advice or legal opinion and should not be construed as such.