Reopening During COVID-19: Is Your Business Prepared for the “New Normal”?

May 2020

In preparation for lifting their “Stay at Home” or similar orders in the coming weeks, governors and public health authorities in some states are implementing new requirements that companies must meet in order to resume and/or continue operations in the workplace during the COVID-19 pandemic. For example, as FMJ reported in our news alert on April 24th, Minnesota’s Governor recently issued Executive Order 20-40 (the “Order”), which requires certain businesses to implement a COVID-19 Preparedness Plan (a “Plan”) that meets specific requirements before they will be permitted to reopen their doors and bring workers back into their facilities.

The Minnesota Department of Health (MDH) has provided additional guidance and resources relating to the Order, including a template that outlines the general framework for such Plans. It is important to note, however, that the MDH template does not contain the substantive policy or procedure language that employers are required to include in a Plan; rather, the template provides a basic list of the required Plan components. Businesses will be responsible for creating each of these required policies and procedures in order to build out a fully-compliant Plan. 

As we explained in last week’s alert, careful planning is required in order to create a Plan that fits your specific business needs and complies with the various laws and agency guidelines that apply.

While the Order only requires certain non-critical businesses in Minnesota to create a Plan, agencies such as the U.S. Centers for Disease Control and Prevention (CDC) and the U.S. Occupational Safety and Health Administration (OSHA) have recommended that businesses implement appropriate workplace preparedness measures in light of COVID-19. As such, it is prudent for all employers to consider implementing a strategic Plan to prepare their workforce to operate safely and effectively throughout the remainder of the COVID-19 pandemic. In this article, we take a closer look at several elements that comprise a comprehensive Plan. 

Based on the Order, as well as the recommendations of the CDC, OSHA, and MDH, the following components should be considered for inclusion in businesses’ Plans.

#1 Outline the company’s ongoing procedures for effective workplace sanitation, such as hygiene and cleaning/disinfecting protocols. The CDC has provided a wealth of information for businesses that are operating during the pandemic, including guidance on how to effectively sanitize various items and surfaces throughout the workplace. That guidance, available here, also outlines the enhanced cleaning and disinfecting measures a business should take in the event that someone who is suspected of having (or is confirmed to have) COVID-19 has been in the facility.

Additionally, OSHA has provided specific best practice-based protocols that are intended to align with the CDC’s recommended measures. Examples of the recommended protocols include frequent and thorough hand-washing, use of proper respiratory etiquette, limitations on the sharing of work tools and equipment wherever possible, regular cleaning and disinfecting of the work environment using Environmental Protection Agency-approved disinfectants, and providing individuals with access to the solutions and materials necessary for them to follow these protocols (i.e., supplying tissues, trash receptacles, hand soap, sanitizer and disinfectants as appropriate).

#2 Identify or reinforce the company’s protocols for social distancing in the workplace. Both the CDC and MDH recommend that businesses continue to take feasible steps to maintain social distancing of six feet between workers. Current agency guidance suggests that a business can demonstrate sufficient efforts in this regard by taking steps beyond simply instructing employees to maintain physical distance between individuals. Businesses should consider additional options, such as continuing remote work arrangements where possible (which may still be required in some form by Stay at Home orders), staggering work shifts to reduce the number of workers in the facility at a given time, re-configuring workstations to increase distance, and adding physical barriers, to name a few.

#3 Set forth procedures to promptly identify and address illnesses in the workplace. OSHA, the CDC, and MDH have each recommended that employers implement measures aimed at identifying and isolating potentially infectious individuals.   

In particular, both the CDC and MDH encourage regular health screenings for individuals entering the business’s facilities during the COVID-19 pandemic. Such screenings may include, for instance, asking individuals questions or checking their temperature to determine whether each individual is experiencing any of the symptoms identified by the CDC as indicators of COVID-19. While OSHA also recommends early detection measures, it has stated its preference for implementing procedures that encourage employees to monitor their health and self-report any symptoms. The method(s) you select may depend upon the nature of your business.

Keep in mind that the Equal Employment Opportunity Commission (EEOC) generally considers such screenings to be a medical inquiry under the Americans with Disabilities Act (ADA). As such, care must be taken to ensure that the company’s screening process is implemented in a safe and fair manner and that all aspects of such screening comply with ADA requirements, including the requirements to keep medical information of employees and their family members confidential. Notably, recent EEOC guidance allows employers to measure employees’ body temperature and ask questions about COVID-19 symptoms in order to determine whether the employees pose a direct threat to health in the workplace. However, the agency cautions against using temperature checks alone to determine a potential threat, as some individuals with COVID-19 do not develop a fever. 

The EEOC has now further stated there may be circumstances in which administering actual COVID-19 tests (versus precautionary temperature screenings) in the workplace may be appropriate as a condition of allowing employees to return to the workplace. However, employers would need to administer such testing in a manner that ensures the test results are accurate and reliable. Testing would have to take into account workplace privacy considerations and would need to comply with applicable laws and regulations, including those surrounding anti-discrimination and occupational health and safety. At this time, it is not yet clear whether any FDA-approved testing procedures are even available that would be deemed compliant with EEOC guidelines. FMJ attorneys are monitoring this development closely, and are available to assist employers who have questions about COVID-19 testing in the workplace.

Notwithstanding any screening measures implemented by employers, guidance from public health authorities indicates that employers should still require employees to observe proper infection control practices (such as effective hygiene, sanitation, and social distancing measures) in the workplace, to the greatest extent possible, in order to reduce transmission of COVID-19.

#4 Include contingency plans for resource strain resulting from COVID-19-related absences. Based on what is known about COVID-19, companies should plan for increased instances and durations of worker absences. This may include developing strategies that will enable the business to conduct essential operations with a reduced workforce, such as cross-training across job functions. These strategies should also account for potential supply chain interruptions or delayed deliveries that may occur as a result of a worker shortage. Businesses should be sure to follow any federal, state, or local recommendations regarding the development of contingency plans.

Once the Plan is developed, businesses should prepare the facility for worker reentry. If feasible, businesses should take time to implement as many of the structural and design modifications to the facility as possible prior to reopening. This includes, for example, workstation reconfigurations, obtaining sufficient cleaning and disinfecting materials, ensuring sufficient supplies of any necessary PPE, and making any changes to ventilation or air circulation systems. While not specifically required, making facility changes in advance will help to reduce worker confusion and prevent unnecessary work disruptions. 

In addition to developing a Plan, we recommend that companies document their policies for providing time off and sick leave related to COVID-19. While this is not one of the required elements of a Plan under Minnesota’s Order, it is recommended by current CDC guidance. Employers that reopen their workplace during the COVID-19 pandemic are likely to receive questions from workers who are concerned about safety and may wish to remain home at this time. Many of these concerns, like most aspects of the COVID-19 pandemic, are novel and may need to be handled in a way that deviates from the company’s regular time off policies. Businesses can get ahead of these situations by documenting their COVID-19-specific time off policies, and distributing them to employees so that they are informed of the company’s requirements and expectations surrounding such requests. Among other things, we recommend that such policies explain the paid leave benefits that employees may be entitled to receive under the Families First Coronavirus Response Act (FFCRA), if applicable to your business, such as eligibility requirements, the process for submitting requests, and a description of the available benefits. 

Finally, it will be important to establish a strategy and schedule for communicating the Plan to managers and the rest of the workforce, posting and circulating the Plan, and providing training or instruction to all employees. Managers and staff who will be responsible for implementation and compliance monitoring should receive additional instruction on those aspects. 

If you would like assistance with developing an appropriate COVID-19 Preparedness Plan or FFCRA-compliant sick leave policies for your workplace, please contact Shannon McDonough at shannon.mcdonough@fmjlaw.comor Natolie Hochhausen at (natolie.hochhausen@fmjlaw.com) in FMJ’s HR & Employment group. More information about HR & Employment group is here.