Yesterday, Governor DeWine outlined “Responsible RestartOhio,” the state’s phased COVID-19 reopening plan. As of May 4, 2020, manufacturing, distribution, and construction businesses may open, as well as general office environments. On May 12, 2020, consumer, retail, and service outlets may open. All businesses must follow specific protocols to reopen and stay open. Notably, among other requirements, employees must undergo daily symptom assessments and must wear face coverings at all times. More information about the protocols is available here.
This is unchartered territory, and, while there is hope that the worst is over, businesses must remain safe and protect their employees. As businesses reopen or return employees to the workplace, they may encounter some of the following concerns:
Rehiring Bias:
As employers look to rehire or bring back employees, they should consider carefully how to do so as to prevent the appearance of bias or discrimination. Employers may subject themselves to lawsuits by consciously deciding to bring back only certain workers (e.g., a disproportionate number of younger employees). Employers also need to be wary of neutral rehire policies that disparately impact a protected class of individuals.What can employers do?
Employers should have a rational, objective basis for their hiring or onboarding choices. For example, if employers conducted layoffs, perhaps returning employees to work in the order in which they were laid off should be a consideration.
Requiring Employees to Return to Work Immediately:
Employers that abruptly demand that workers return to the workplace may face opposition from their workforce. Many workers have adjusted their daily routines and behavior during the COVID-19 pandemic. As businesses reopen or bring workers back, workers may still have concerns about the pandemic and their employers’ ability to keep them safe. Workers also may have new constraints that limit their ability to return to work immediately, such as caring for elderly family members or child care.What can employers do?
Employers could consider allowing workers to return on a voluntary basis, at least initially. This allows employers to resume operations slowly and with less risk. A gradual return helps employers test new or improved workplace infection control practices on a smaller scale. These practices must follow all requirements outlined by Governor DeWine and the Ohio Department of Health. A phased approach also gives employees who want to return immediately the chance to do so, while allowing those with concerns or constraints more time to address them.
Workplace Safety:
Regardless of how employers choose to bring back their workforce, employers should put safety at the forefront. Besides the obvious threat of an outbreak, employers that do not implement workplace infection control practices to mitigate transmission of COVID-19 in the workplace face a myriad of issues, such as: unwanted attention from state and local health departments; increased litigation exposure; and fearful employees who do not want to return to work.What can employers do?
- Follow all Sector Specific Operating Requirements and other mandates for employers issued by the Ohio Department of Health.
- Review COVID-19-related guidance from the U.S. Equal Employment Opportunity Commission, Occupational Safety and Health Administration, CDC, U.S. Department of Labor, and other relevant authorities.
- Require employees who are sick to stay home.
- Require employees who exhibit COVID-19 symptoms (in general, fever, cough, shortness of breath) while at work to go home.
- Take employee temperatures at the start of each work day.
- Continue emphasizing appropriate workplace infection control practices like frequent handwashing, increased cleaning/sanitizing, social distancing, and other measures.
- If possible, alter the physical worksite to add plastic screens and barriers where appropriate.
- Know what to do if an employee contracts COVID-19.
- Listen and respond to employee concerns about COVID-19.
Non-Traditional Work Arrangements:
For most employers, immediately returning to pre-pandemic business arrangements, schedules and standards will not be possible. Employers will be forced to re-evaluate operations previously considered “the norm.” In doing so, employers may face challenges balancing business operations, workforce safety, and mitigating the transmission of COVID-19.What can employers do?
Consider implementing non-traditional work arrangements like four-day work weeks, telework, staggered employee shifts, or flexible workweeks.
Each employment situation is unique, and employers must do what works best for them and their employees. As always, please consult Z&R to discuss your particular circumstances.
Z&R has developed form policies, request forms and other guidance documents related to COVID-19 related issues. Z&R will continue to monitor the latest information governing employers. Previous Z&R articles addressing employer requirements and considerations during the COVID-19 pandemic can be found here:
- EEOC Allows Employers to Test Employees for COVID-19 before Resuming Work
- Coronavirus Considerations for Employers
- Ohio Provides Some Cover for Employers and Employees in Wake of COVID-19
- Federal COVID-19 response mandates paid leave (for now)
- Application of the Worker Adjustment and Retraining Notification Act (“WARN”) to Closures Caused by the COVID-19 Pandemic
- Ohio BWC: Allows Deferment of Premium Payments and Addresses Compensability of Contracting COVID-19
- Ohio Department of Insurance Provides Coverage Flexibility for Ohio Employees in the Wake of COVID-19
- FLSA Implications for Employers Considering Reductions in Pay
- Ohio Legislature Passes Emergency COVID-19 Response Legislation
- U.S. Department of Labor Issues Families First Coronavirus Response Act Model Notice
- Loans, Unemployment Assistance, and Other Relief Under the CARES Act
- U.S. Secretary of Labor Releases Temporary Rules Implementing The Emergency Family and Medical Leave Expansion Act and The Emergency Paid Sick Leave Act
*Tiffany S. Henderson practices in all areas of labor and employment law. If you have questions regarding COVID-19 medical testing or related issues, please contact Tiffany at tsh@zrlaw.com or 216-696-4441.