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When Business Operations Resume, Employers Will Encounter A New “Normal” In The Workplace

4/15/20

By: Justin Boron

After about a month into business shutdowns across the country, employers and employees alike are hoping that a return to the workplace is not too far off into the future.  In anticipation for that moment, employers should start planning for a workplace that will be much different than the one that employees left when the shutdown orders were issued.   

When restaurants, retail stores, and offices eventually re-open, the COVID-19 pandemic will likely still be a threat, and the shutdowns themselves will likely have had an impact on the makeup of the workforce and the nature of the employment relationship.  So there will be an array of health and safety issues—in addition to legal issues—that need to be addressed.  To that end, we collected guidance from various sources in the key areas that an employer will likely confront when businesses re-open:

Health and Safety

A good starting point for health and safety is the CDC’s recent guidelines for businesses with critical infrastructure workers who—exempt from shutdown orders—have continued to operations during the COVID-19 pandemic.[1]

To the extent a worker has been in household contact or close contact within six feet of an individual suspected of having COVID-19, the CDC guidance would allow the employee to continue to work assuming the employer takes the following precautions:

  • Pre-Screen: Employers should measure the employee’s temperature and assess symptoms prior to them starting work. Ideally, temperature checks should happen before the individual enters the facility.
  • Regular Monitoring: As long as the employee doesn’t have a temperature or symptoms, they should self-monitor under the supervision of their employer’s occupational health program.
  • Wear a Mask: The employee should wear a face mask at all times while in the workplace for 14 days after last exposure. Employers can issue facemasks or can approve employees’ supplied cloth face coverings in the event of shortages.
  • Social Distance: The employee should maintain 6 feet and practice social distancing as work duties permit in the workplace.
  • Disinfect and Clean workspaces: Clean and disinfect all areas such as offices, bathrooms, common areas, shared electronic equipment routinely.

Health experts are also encouraging employers to begin assembling the infrastructure necessary for rapid on-site testing in the workplace.  Although this measure might seem strange in the workplace, it isn’t without precedent.  Employers commonly provide access to flu vaccines in the workplace.  In an article in the Wall Street Journal, Scott Gottlieb—a former FDA commissioner—and Lauren Silvis—a former deputy director of the FDA’s medical device center—advised employers to treat COVID-19 like the flu in the workplace:

Portable and relatively inexpensive testing platforms can be brought to businesses in mobile vans or deployed on-site and administered by professionals.  Testing companies are ramping up supply, and businesses can start placing orders now.

Restoring Employment Effectively

Many employers might have had to lay off or furlough all or parts of their workforces.  To the extent employers can recall some of these workers when their operations resume, there are potential pitfalls to consider in re-assimilating workers to on-site operations.

  • In the event of a reduced workforce, employers will likely need to re-assign responsibilities and job duties.  Employers should consider whether the change in duties would result in a need to change an employee’s classification under wage and hour laws from exempt to non-exempt and should review the new duties with the employee.
  • If the employer alters an employee’s pay structure, such as by adding incentive bonuses, the employer should consider whether the new pay structure alters the calculation of an employees’ regular rate of pay used to determine overtime amounts.
  • An employee who was let go without pay or benefits might need to be formally re-hired—requiring an employer to repeat its hiring procedures, including a meeting applicable I-9 requirements.

Protecting Against Discrimination

The EEOC and state discrimination agencies have keyed in on the potential for disability and national-origin discrimination arising from the COVID-19 crisis, so employers should be aware of the potential for claims.  State agencies have offered varied guidance with some—like the New Jersey Division on Civil Rights—taking fairly aggressive positions on workplace discussion about the origin of the virus and phrases like “Chinese virus” in the workplace.

To mitigate the risk of these kinds of discrimination, employers should review their handbook policies against discrimination with employees and include COVID-19 issues in any annual training that the employer conducts.  The EEOC also has issued special guidance for handling employee complaints about COVID-19 related harassment here.

Additional Information:

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis. On Wednesday, April 22nd, Freeman Mathis & Gary will be hosting a webinar on this topic. Register here.

Other topics include COVID-19’s impact on finances and loans, the FFCRA, the CARES Act and more. Click here to view upcoming webinars.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients. Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**


[1] The CDC is regularly updating its guidance, so employers should periodically check.