With the recent announcement by Governor DeSantis that all Florida counties have entered Phase One of re-opening the state’s economy, Florida businesses must get plans in place for resuming business operations at their physical locations.
When it comes to the COVID-19 pandemic, new guidance is being released at a blistering pace. Prior to reopening your business, you should consider the federal guidance that has been published regarding health and safety for workplaces, anti-discrimination, and wage and hour issues. This includes guidance from the Centers for Disease Control and Prevention (CDC), Equal Employment Opportunity Commission (EEOC), OSHA, the White House, Governor DeSantis’ executive orders, and any county or local orders. The recently released federal guidance on these topics constitutes recommendations for employers, and does not mandate any new legal requirements for employers. However, it is likely that the suggestions in these guidelines will be used in future legal proceedings to argue the standard of care that employers should have followed during the COVID-19 pandemic. Meeting the applicable standard of care will be significant for employers to be able to maintain the legal immunities available under workers’ compensation laws for employees injured at work. Also, this guidance is likely to be considered in determining the standard of care in the event that employers face claims for negligent exposure to COVID-19 by guests and business invitees.
On top of all of these considerations, each business has its own practical operations and workforce to consider. Most businesses will likely need to engage in a phased approach to resuming normal operations. Here are three of the most frequently asked questions that businesses will need to answer before opening their doors:
1. What Type of Office Practices Should My Business Implement Once It Reopens?
Based on the available guidance, there are all types of measures that an employer can consider implementing in the workplace. However, when establishing policies, be careful to avoid adopting policies that you will not follow. Across the board the federal guidance for employers uniformly support the following practices:
- Implementing policies regarding social distancing;
- Monitoring employees for symptoms (which could include daily screening and/or temperature checks);
- Promoting hygiene practices such as frequent hand washing, respiratory etiquette, disinfecting frequently used items or surfaces, and staying home when sick;
- Conducting a thorough hazard assessment to determine what type of controls and personal protective equipment are needed;
- Taking appropriate action if an employee is suspected or confirmed to have COVID-19;
- Training employees on how they can protect themselves from the virus;
- Performing routine cleaning and housekeeping practices;
- Developing, implementing and communicating (including through workplace training) policies about workplace flexibilities and protection, ensuring that the policies are consistent with public health guidance;
- Considering special accommodations for personnel who are members of a vulnerable population;
- Limiting non-essential travel and adhere to CDC guidelines regarding isolation after travel.
Employers may also consider the following recommendations in the various available guidance:
- Develop policies and procedures related to workforce contact tracing after an employee tests positive for COVID-19;
- Temperature checks and other employee screening;
- Return to work in phases (considering essential employees and those whose jobs cannot be adequately performed remotely);
- Close common areas and/or create a strict social distancing protocol;
- Develop a policy and procedure for telework, if feasible;
- Encourage employees to consider wearing face coverings or face masks in the workplace;
- Provide resources to encourage personal hygiene, such as providing tissues, no touch trash cans, hand soap, alcohol based hand rubs, disinfectants, disposable towels that employee can use to clean work surfaces;
- Identify a workplace coordinator who is responsible for all COVID-19 related issues;
- Flexible work hours and staggered shifts;
- Use video conferences or telephone conferences instead of in-person meetings.
What a business should do, needs to consider, and any requirements for resuming operations are all based on the available guidance, and the specific needs and risks associated with your business. Contact your lawyer if you need help creating policies for re-opening your business.
2. How Do I Decide Which Employees Should Return to Work?
This question is an important one for businesses, and should be approached with the utmost care and sensitivity. The key factors to consider when deciding which employees will return to work should be:
- The safety and welfare of your employees;
- The operational needs of the business; and
- Whether the employees can effectively complete their job duties from home.
Deciding which employees should return to work and how to best return employees to work depends upon your specific business. Guidance at the federal level suggests that employers continue to encourage telework arrangements whenever possible. Consider developing a remote work or telework policy for employees if your business will continue to allow employees to work from home.
3. What Should a Business Do if an Employee Refuses to Come Back to Work When the Business Reopens?
Employers need to give serious thought to the realistic possibility that employees may request to continue working from home after the business reopens. It may be feasible, and even beneficial in certain circumstances, to continue allowing employees to work from home. On the other hand, certain positions may involve duties that cannot be effectively completed from home. Regardless of whether an employer chooses to allow telework options or requires employees to physically report to work, employers should clearly communicate the expectations for employees before the business reopens. Your concerns regarding employee productivity, overtime and wage issues, and possible exposure to discrimination claims over accommodations or allowing certain employees to telecommute should be considered before your business reopens.
For employees for whom telework is not an option and the employee is not requesting an accommodation, you should communicate with an employee who expresses fear over returning to work. Inform the employee of the policies and protocols that the business will be implementing when the business reopens. If the employee is still uncomfortable with returning after they have learned about the policies, consider allowing the employee to take an unpaid leave of absence for a period of time until the employee is more comfortable with returning. No one can force an employee to return to work if he or she chooses not to return. Ultimately, if the employee continues refusing to return, you can advise the employee that if they do not return by a certain date, they will be considered to have abandoned their position. This is a last resort, and the appropriate steps to take will vary for each situation. Consider consulting with an attorney before firing or taking any action related to an employee who refuses to return to work.
Note that it is extremely important that employers refrain from mandating different job requirements for high risk employees in a blanket fashion because there is a risk of violating anti-discrimination laws, such as the Americans with Disabilities Act or the Age Discrimination in Employment Act. Work with your employees who are considered to be “vulnerable individuals” (e.g., elderly individuals, individuals with serious underlying health conditions, or those with compromised immune systems) on a case-by-case basis to determine what accommodations might be appropriate to allow them to perform their duties.
The Bottom Line
The questions addressed above are only a small sampling of the myriad of questions that a business should consider prior to reopening. We encourage all employers to consider establishing a policy for safely returning their employees to work so that the transition to resuming normal business operations is a smooth one. A strong policy should reflect all federal, state, and local guidelines, as well as your business’ specific, practical considerations for resuming day-to-day operations.
Contact a Gunster Labor and Employment attorney if you have any questions regarding reopening your business or establishing telework or “return to work” policies.
For more information, visit Gunster’s COVID resource page.