Welcoming Employees Back to the Workplace
This past year has been a challenging year for nearly everyone across the country and across the globe. Now that we are seeing people get vaccinated, along with the COVID-19 numbers declining in most states, more businesses are beginning to open their doors and return people to the workplace. This article will address some key points to consider when welcoming employees back to the workplace using the three C’s.
An employer’s number one objective should be to keep employees safe, and this should be the highest priority when returning employees to work. As you return people back into the office, you may find that there are some logistical considerations with office space in order to facilitate social distancing. Should you have all remote employees return to the workspace, or offer some kind of hybrid solution? Will you test employees for COVID-19? Will you require employees to get vaccinated? If so, do you have to pay for these things? And what about the employees’ time? What happens when employees don’t adhere to the policies set in place? What if employees don’t want to return to work? If you have a unionized workforce, what must you pay special attention to under the Collective Bargaining Agreement? These are just a few questions employers should consider as they begin the return-to-work process.
Create a plan
Returning employees to work should be a deliberate and documented process. The most effective way to do this is to create a plan. The plan should address the questions posed above. There isn’t necessarily a correct answer for any of these questions; it is based on the needs and best practices of the employer. Not only is it a good idea to have a documented plan in place, but OSHA may also require it. Under OSHA, employers are responsible for providing a safe and healthy workplace free from recognized hazards likely to cause death or serious physical harm. The OSHA website says that implementing a workplace COVID-19 Prevention Program is the most effective way to mitigate the spread of COVID-19 at work. An effective plan will include the following elements:
- Assign a point person and/or team who will be responsible for COVID-19 issues on behalf of the employer.
- Perform a hazard assessment to identify potential workplace issues related to COVID-19.
- Establish safety protocols such as when face masks and social distancing are required.
- Establish a system of communicating effectively with employees.
- Educate and train employees on COVID-19 policies and procedures and consequences if they are not followed.
- Provide guidance and any requirements regarding screening, testing and vaccinations.
- Implement a system to report concerns together with protections against retaliation for such reporting.
Employers should be concerned as they begin bringing employees back to the workplace. There have already been cases filed in the courts for things such as not providing accommodations under the Americans Disability Act (ADA), not providing leave under FMLA and FFCRA, workers’ compensation cases, Fair Labor Standards (FLSA) cases, and OSHA cases. With a myriad of employment laws to consider, it can feel as though you are navigating a minefield. As such, there are a few things employers can do to help mitigate risks. While not all-inclusive, important points to consider while returning employees to the workplace include:
- While “fear” is not considered a disability, research has shown that COVID-19 has exacerbated many mental health conditions such as anxiety, depression, and PTSD. Employers are advised to engage in an interactive conversation with the employee if an employee asks for accommodation. The employer is still permitted to make a decision on whether the accommodation imposes an “undue hardship.”
- Employers may require vaccination for their employees; however, they should be prepared to accommodate those with a medical condition or a sincerely held religious belief. Employees may also be covered under workers’ compensation laws if they have an adverse reaction. Finally, there may be protections for employees who refuse the vaccine because of a safety concern and if it’s a discussion among employees it may be considered a concerted activity.
- While the vaccine is not a medical exam, the questions that are prior to the vaccine are considered medical inquiries and subject to ADA standards.
- Employers can ask their employees if they have been vaccinated. They can NOT ask “why not?” Employers want to avoid obtaining additional medical information from employees as they respond, as that could invoke protections under federal or state disability laws.
- There is not a mandated vaccine credential, and many states have banned use of a “vaccine passport” (verification of the vaccine).
- The requirement that employers provide paid sick leave and expanded family and medical leave under the FFCRA expired Dec 31, 2020. The American Rescue Plan Act of 2021 (ARPA) allows small and midsize employers to claim refundable tax credits that reimburse them for the cost of providing paid sick and family leave including leave taken by employees to receive or recover from COVID-19 vaccinations. These credits are available from April 1, 2021 through September 30, 2021. The leave is not mandatory under federal law, but there are a handful of states and cities that have their own leave and vaccine requirements and rules such as California, New York, New Jersey, and Pennsylvania localities.
- Employers should keep in mind that other leave laws still apply, both at a state and local level as well as federal law under the Family Medical Leave Act.
- Employer-required temperature checks or COVID-19 health screenings, COVID-19 testing, and required COVID vaccinations are considered compensable time under the FLSA.
As the coronavirus (COVID-19) pandemic situation slowly subsides, employers across the nation are gradually bringing their teams back to work. There are many things to consider when deciding how and when to bring employees back and resume operations.
Returning to work you must consider:
- Check updates to federal, state, and local mandates. It is important to recognize that the laws related to COVID-19 are changing frequently. Additional information and resources are available in the HR Service COVID-19 Toolkit.
- Ensure required COVID-19 notices have been posted, both for your employees and, in some cases, specific postings may be necessary for guests or customers.
- Based on the state you do business in, employers may be required to provide and pay for masks for their employees. Although not required, some businesses may also elect to provide face masks for customers or visitors.
- Review and follow OSHA, CDC, and other agency and industry-specific guidance related to your workplace.
- If collective bargaining agreements are in place for your workforce, coordinate with Union representatives.
- Ensure employees are aware of any new policies, as well as the consequences for violating them. Document training that has been provided and keep acknowledgments in employee personnel files.
- Update your company’s sick leave or PTO policies as needed, particularly to address FFCRA leave requirements.
- Remember to maintain the privacy of employee health information, including medical screening or test results.
- Determine what sort of business travel (if any) will be allowed. This should include the method of travel, as well as logistics (hotel, rental car, etc.) in the destination city. Coordinate any new COVID-19 compliance requirements with the businesses your employees will be visiting to ensure that there is an agreement in advance of what is required.
- Impose meeting size limitations to ensure compliance with social distancing requirements.
- Consider closing off common areas (e.g., conference rooms, lunchrooms) for the time being.
- For companies situated in buildings that have multiple tenants, check with your landlord or property management group to determine what COVID-19 protocols are being implemented in common areas such as elevators, restrooms, hallways, and lobby areas. Ensure these policies are communicated to your employees and are followed.
Selecting and Notifying Employees of the Reopening
- Determine which employees or employee groups will be rehired or recalled first. If separation agreements were used, rehired employees may need to have them revised or amended.
- Provide sufficient advance notice to employees so they can make necessary preparations to come back to work. If possible, we recommend at least five working days when appropriate. This may be particularly helpful to some employees who may be hesitant regarding safety measures or may have childcare arrangements to work through.
- Make certain you are using non-discriminatory recall or rehiring practices. “First Out, First Recalled” is one good way to approach this. A formal or informal disparate impact study may be helpful to ensure compliance. NOTE: There is an understandable inclination for employers to want to protect certain groups of people (e.g. older workers) while the COVID-19 virus is still active. Please be aware that even when done with the best of intentions, discriminatory rehire or recall practices are still illegal.
- If employees are being brought back on a different shift schedule, or at a different rate of pay, make sure to notify them in advance, and in writing, of these changes, and confirm if these changes are temporary or long-term changes.
Physical Modifications to the Workplace
- Social distancing is still in effect in nearly all jurisdictions. Most often this requires maintaining at least six (6) feet separation between people, and ten (10) feet separation in places where physical exertion may cause more labored breathing and/or perspiration.
- Employers may need to install solid partitions between workstations, or physically remove some workstations, to ensure that social distancing protocols can be maintained.
- Certain businesses may be restricted to the number of persons allowed inside the premises based on square footage and / or occupancy capacity.
- Some retail establishments may be required to mark customer aisles as one-way only and have procedures in place to enforce these new traffic patterns.
- Make sure CDC cleaning and disinfectant protocols are followed.
- Ensure that adequate cleaning supplies are available and accessible.
- High-contact surfaces such as counters or tabletops must be sanitized more frequently.
- Think about allowing split shifts or alternate workdays (partial reemployment, 20 hours vs. 40 hours)
- Be ready to address other accommodation requests from employees. Keep an open door and open mind; a greater degree of flexibility than usual is helpful and necessary during this unprecedented situation.
- Remind employees not to come to work if they are sick or exhibiting COVID-19 symptoms.
- If you are planning to conduct temperature screenings or other medical screenings for employees, make certain that their privacy is maintained and that the person(s) administering the screenings are properly trained in privacy practices.
- Review whether any Benefit Plans (health/wellness programs as well as retirement plans) need to be revised or reissued. A Summary of Material Modifications (SMM) document may be required.
- Advise employees of any plan changes directly, in addition to providing the more formal SMM.
- Remind employees of their FFCRA rights (if applicable). When FFCRA leave is exhausted or not offered, interactive discussions for reasonable accommodations under the ADA may be necessary.
- Continue to allow employees to telework where practical, especially those in higher-risk populations.
- Consider using any available slow time to complete annual industry training/retraining requirements.
- Be prepared to address employee concerns regarding returning to work. An interactive dialogue can be very helpful in addressing employee concerns.
Once an employer has taken the steps prescribed above, it is important to communicate effectively with your employees. Remember this is a human experience, so make sure you are listening to employee concerns. Document everything, follow the required rules and regulations and be prepared to be flexible as you consider employee needs.
EEOC ADA and COVID 19 FLSA and COVID 19
Prepared by Holly Young, MA, SPHR, SHRM-SCP
Human Resources Business Consultant