You’ve been operating your company with a skeleton crew. In less than 10 days, you plan to resume “new-normal” operations. Before you welcome your furloughed employees back to the workplace, make sure you can answer these six questions.
Can you implement consistent, effective infection prevention?
Before employees return to your workplace, you need to ensure you can keep them reasonably free from COVID-19 infection. The Office of Safety and Health Administration’s publication “Guidance on Preparing Workplaces for COVID-19″ provides employers step-by-step instructions for effective infection prevention. You need to implement this guidance, along with state and local guidelines, and communicate it to every employee who returns on-site.
What if one of your employee’s medical conditions places him or her at higher risk?
The Equal Employment Opportunity Commissions, OSHA and CDC all provide employers with guidance for responding to employees at higher risk for COVID-19. According to the EEOC, employees at higher risk may be entitled to reasonable accommodation under the Americans with Disabilities Act. Further, these employees need not use the words “reasonable accommodation” in their request in order to trigger an employer’s need to discuss potential reasonable accommodations with the employee.
What if a welcomed-back employee shows symptoms or tests positive?
If any of your employees show potential COVID-19 symptoms or test positive, immediately send the employee home. If they test positive for COVID-19, they may be entitled to job-protected leave under the Families First Coronavirus Response Act, the Family Medical Leave Act or the Americans with Disabilities Act. You’ll need to immediately sanitize any areas where this employee worked and notify any coworkers or customers who may have been in contact with the infected employee. You may not, however, disclose the identity of the employee who tested positive, as that would violate the ADA’s confidentiality provisions.
You need to follow CDC guidelines before allowing a previously infected employee to the workplace. This means the employee cannot return to the workplace until he has received two COVID-19 negative tests taken 24 hours apart in a row; no longer has a fever without help from a fever-reducing medicine; and his cough or shortness of breath or other respiratory symptoms have improved.
What if one of your employees refuses to return to work?
If one of your employees asks for additional leave or to work remotely because they have an underlying medical condition that makes them at higher risk for COVID-19 or have another FFCRA-qualifying reason for leave, you need to consider whether you can reasonably accommodate to them.
If your employee lacks a legally protected reason for not returning to work, but simply doesn’t want to, or shares that he’d rather stay home and receive unemployment benefits, this translates into an employee’s choice to resign from at-will employment. Do not, however, fire your employee for raising a concern about returning onsite, as this could give rise to a wrongful termination claim under the National Labor Relations Act.
May you ask employees health questions or take their temperatures?
The EEOC states in its publication “Pandemic Preparedness in the Workplace and the ADA” that employers may screen workers for COVID-19 by asking health-related questions and through medical exams such as monitoring temperatures. Employers may not, however, asks about the health of the employee’s family. Here’s the employer’s best work-around – ask if your employee has been exposed to anyone who has COVID-19.
Does that fact that you have offered your employees the ability to work remotely set a precedent?
Some employers have found that remote work works for them. Other employers have allowed work from home in response to the pandemic and yet now view onsite work as essential. If you’re an employer in this second category, be prepared for one or more of your employees to assert, “I can do my job remotely. I did so for many months in 2020.”
If you want all employees to return onsite, here’s how to preventatively counter this claim. Provide your employees a statement such as, “Due to the pandemic, we’ve allowed remote work for a temporary period. We understand that many employees have not been able to perform all their job’s essential functions during this temporary period. As a result, when we determine we can, we plan to notify employees that remote work will no longer an option, unless specific reasons allow an exception.”
Is your workplace ready for a “new normal”?
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