As states and local governments expand the categories of businesses allowed to reopen and other businesses attempt to transition from a remote-centered work environment to hybrid or in-person models, employees are still concerned about whether they can return to work safety. In turn, business owners are concerned about the threat of lawsuits from employees who may be exposed to or contract COVID-19 at work. What then, should employers be doing as they prepare to reopen or review their procedures for in-person work?

Step 1 – Reopening the Workplace Safely

First, business owners should ensure that they are following any guidelines or recommendations for safely reopening their business, at a minimum. Keep in mind that while OSHA and the federal government do not generally mandate cloth masks or face coverings, many state and local governments do. If the state or local government has implemented an order mandating that masks be worn inside enclosed public spaces, for example, employers should ensure that employees are wearing masks while at work. Employers should also familiarize themselves with any exceptions to any mask mandates to ensure that employees requesting accommodations receive the appropriate response. Social distancing guidelines and capacity limits should be followed and procedures implemented to ensure that all hygiene practices are being followed. OSHA and the CDC have developed and issued guidance to allow employers to ensure that they are meeting the minimum recommended requirements. Finally, business owners should also consider the logistical issues related to employees’ return to the office, such as whether transit systems are operating normally, building entry protocols, rules around elevators, and so on, to adjust schedules to ensure that employees are able to safely get in to the office.

Step 2 – Minimizing the Risk of Transmission between Employees

Second, employers should also have procedures and processes in place to ensure that employees who are experiencing symptoms of COVID-19 are not entering the workplace. Again, the CDC has a list of symptoms of COVID-19 which employees should be self-reporting to employers. This list has been updated as the CDC has learned more about the virus and should be reviewed regularly to ensure that an accurate list of symptoms is being used. As the seasons change, you’ll also want to ensure that employees understand the difference between symptoms of COVID-19 and seasonal allergies. Other processes, such as temperature checks or mandatory testing may make employees feel safer about returning but may have limited practical impact. Employers should also continue to review and communicate the leave benefits available to employees to encourage symptomatic employees to stay home to prevent the spread of COVID-19. Finally, employers should familiarize themselves with the contact tracing procedures established by their state and local government to ensure that, in the event that an employee reports to work while infected, whether knowingly or unknowingly, you follow any notification procedures to ensure that any employees or members of the public who may have been exposed are notified through the proper channels. All of the steps a business is doing to reopen safely should be communicated to employees to alleviate as many of their concerns as possible.

There are No Blanket Liability Shields for Employers

While business owners have been lobbying Congress to include immunity from lawsuits in negotiations over stimulus packages, no legislation has been introduced to do so and the proposals take many forms. Some proposals provide blanket immunity while others instead make employee claims compensable under worker’s compensation, limit relief to employees who are hospitalized, or limit relief available to customers of a business. Should any legislation affecting liability pass, we will follow with an update at that time. If you have any questions about your business’ reopening plan, please feel free to contact our Employment & Labor Law practice group.

Visit our COVID-19 Resource Page for more updates.