June 18th, 2020 | Angela Preston, SVP and Counsel, Corporate Ethics and Compliance, Sterling
Return-to-Workplace Compliance: 4 Key Legal and Regulatory Considerations to Reopen and Stay Open
As COVID-19 shelter-in-place orders are starting to lift across the country, states have begun the difficult process to reopen the workplace. As employers look for guidance on how to safely bring their employees back to work, some are struggling to understand their legal obligations. With guidance changing day to day, rules may vary by state, city, and industry. For the latest information on compliance-related matters, visit Sterling’s Compliance Updates page and watch our Return-to-Workplace Compliance video.
Below are four key compliance considerations that employers need to consider overall as they reopen their businesses.
1. State and Local Executive Orders
Each state took a different approach to closing down business in the wake of the global pandemic. It’s thus not surprising that the same is happening as things start to open back up.
Most governors and some mayors have issued executive orders around the requirements for reopening. States are typically taking a phased approach and allowing different activities to come back in waves, while watching for any signs of resurgence or burden on the healthcare system. Everything from social distancing requirements, wearing of masks, testing protocols, and cross-border travel and quarantine requirements are covered in these executive orders.
The Council of State Governments has put together a website of the executive orders from all 50 states and US territories (the website also has an interactive map with links to states’ re-open plans).
One of the challenges is that cities may also have re-open requirements that may differ from and/or be stricter than those state orders. In some states, like Texas, city governments have been reluctant to speed through the reopening process, but have been overruled by state orders that supersede their authority.
A similar story has played out in Atlanta, Nashville, and other cities where health authorities are taking a more cautious approach. The bottom line for employers is to understand the laws in the states where you are doing business, and consider any special local rules that may impact your plans.
2. CDC Guidance
The Centers for Disease Control and Prevention (CDC) has issued resources to guide businesses in the reopening phase of the pandemic.
On May 20, 2020, the agency issued a press release with links to key CDC resources, including its guidance document CDC Activities and Initiatives Supporting the COVID-19 Response and the President’s Plan for Opening America Up Again. This guide was published to assist organizations through the reopening process in support of the more general White House information published in the President’s plan.
The CDC document covers guidance on testing, contact tracing, and surveillance. More recent guidance focuses on schools, youth sports, restaurants and bars, and summer camps specifically in four key areas: promoting behaviors to reduce spread, maintaining healthy environments, maintaining healthy operations, and preparing for when someone gets sick. The CDC guidance is a must for organizations in all parts of the US.
3. OSHA Compliance
The Occupational Safety and Health Administration (OSHA) has published a guide for ways to safely operate in the pandemic.
The Guidance for Preparing Workplaces for COVID-19 document recommends that organizations create an Infectious Disease Preparedness and Response Plan. With fundamental guidance on handwashing, use of masks, stay-at-home policies, and respiratory etiquette, the guide also contains industry-specific resources for high-risk workers such as taxi and rideshare drivers, food processing professionals, and retailers.
The agency’s website also includes useful tools to help gauge the risk of exposure based on job function.
4. EEOC Compliance
In March of this year, the Equal Employment Opportunity Commission (EEOC) updated its publication Pandemic Preparedness in the Workplace and the Americans with Disabilities Act with new information pertaining specifically to COVID-19.
The updated guidance clarifies that the COVID-19 pandemic meets the “direct threat” standard, and as such, concludes that a significant risk of substantial harm would be posed by having someone with COVID-19, or symptoms of it, in the workplace. Therefore, the EEOC maintains that screening for symptoms and testing for the active virus are appropriate measures to take in determining the ability of people to safely enter the workplace.
Key items in the guidance include:
- An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job.
- An employer may take an applicant’s temperature as part of a post-offer pre-employment medical exam. However, employers should be aware that some people with COVID-19 do not have a fever.
- Employers may delay the start date of an applicant who has COVID-19 or symptoms associated with it since such individuals should not be in the workplace.
- Under the current CDC guidance, an employer can withdraw a job offer when it needs the applicant to start immediately but the individual has COVID-19 or symptoms of it. Since the individual cannot safely enter the workplace, the employer may withdraw the job offer.
In addition, on June 11, 2020, the EEOC issued an update in a document entitled What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. This guidance covers key areas of consideration to avoid running afoul of the other anti-discrimination laws enforced by the EEOC. The EEOC has since further clarified the guidance, saying that antibody test results should not be used to make decisions about returning persons to the workplace, and such use may violate the ADA.
Topics covered include how to handle disability-related inquiries and medical exams, confidentiality of medical information, hiring questions, reasonable accommodation, pandemic-related harassment, furloughs and layoffs, return to work, age discrimination, caregiver considerations, and pregnancy.
A thorough review of the guidance with your counsel is a must for all employers who are subject to EEOC enforcement under Title VII, and who are looking for the best approach on how to abide by the applicable laws in the contest of new requirements for health and safety.
Most importantly, keep in mind that guidance from public health authorities and other government agencies has changed over the past weeks and months, and will likely continue to change as the pandemic evolves. Therefore, employers need to be vigilant, consulting with their legal counsel in keeping up with the latest guidance and following the most current information on compliance in maintaining workplace safety.
This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.