As government authorities look to implement business reopening measures, employers are now planning to move employees back into the workplace as state and local stay-at-home orders expire and other COVID-19 business restrictions expire or are modified. What are the various considerations employers must keep in mind when reopening their physical work locations?
This Question and Answer Guide describes a number of COVID-19 employment and return-to-work considerations. Because the COVID-19 pandemic is a fluid situation and highly dependent on jurisdiction- and sector-specific considerations, we anticipate that additional guidance will be coming from the federal, state and local governments as plans to allow businesses to open are developed in the coming days and weeks.
This information has been updated as of June 1, 2020.
Table of Contents:
- General Questions: When and How to Resume Business Operations
- Practical Realities: Environmental and Physical Considerations
- Practical Realities: Employee, Applicant, Vendor and Customer Health Screenings and Other Health Considerations
- Practical Realities: Hiring Issues
- Practical Realities: HR Issues
- Practical Realities: Sick Leave Considerations
- Practical Realities: Disability Related Inquiries and Medical Exams
- Practical Realities: Employer Tenant/Landlord Considerations
- Practical Realities: Union Considerations
- Practical Realities: Employee Benefits Considerations
- Practical Realities: OSHA Guidance
Appendix: Considerations for Retailers
- Restaurants and Bars
- Personal Health and Beauty Retailers
- Clothing Stores and Specialty Retailers
- Other Considerations for “Big Box” and All “Brick and Mortar” Retailers
Disclaimer: Because requirements at the federal, state, and local level are constantly changing, employers should monitor developments, and consult counsel for advice based on their specific circumstances.
I. General Questions: When and How to Resume Business Operations
When will employers be able to reopen physical locations?
This will vary based on the employer’s location and industry. A current trend we are seeing is that states are reopening in phases. Employers will have to comply with state and local directives, which will guide when and how to reopen. As examples, in New York and New Jersey, the Governors’ stay-at-home orders are currently set to expire May 15, 2020. For information on closure and other emergency orders that are currently in effect, visit our COVID-19: Government Actions resource page.
While employers will have to comply with state and local directives, on the federal level, the U.S. Centers for Disease Control and Prevention (CDC) just released guidance to assist businesses in making decisions regarding reopening during the COVID-19 pandemic. That guidance directs that businesses should not reopen unless they can answer yes to ALL of the following questions:
- Are you in a community no longer requiring significant mitigation (or restricting operations to designated essential critical workers)?
- Will you be able to limit non-essential employees to those from the local geographic area?
- Do you have protective measures for employees at higher risk (e.g., teleworking, tasks that minimize contact)?
Even if companies are able to answer yes to these three questions, the CDC recommends that businesses remain closed until they can implement a number of safeguards to combat the spread of COVID-19 — most of which we are seeing tracked in return to work orders being signed by Governors and listed in Occupational Safety and Health Administration Guidance on Preparing Workplaces for COVID-19. The safeguards include:
- use of healthy hygiene practices.
- intensified cleaning, disinfection, and ventilation.
- social distancing.
- telework and cancellation of non-essential travel.
- seating distance of at least 6 feet and staggered gathering (starting/closing) times.
- restricted use of any shared items or spaces.
- training all staff in all of the safety actions.
Even then the CDC does not recommend that businesses reopen until they also establish ongoing monitoring protocols such as:
- having sick employees stay home.
- establishing routine, daily employee health checks.
- monitoring absenteeism and having flexible time off policies.
- having an action plan if an employee or worker tests positive/presumptive positive for COVID-19.
- creating and testing emergency communication channels for employees.
- establishing communications with state and local authorities.
The CDC also recommends that employers be prepared to close quickly if needed based on applicable guidelines. Employers should also be aware of the CDC’s Guidance for cleaning and disinfecting workplaces.
What legal obligations will employers need to consider as part of reopening plans?
This will also vary based on the employer’s location and industry. Employers will have to comply with federal, state, and local directives. The trends we have been seeing include various health screening and testing measures, social distancing, use of face masks, protocols for addressing reports of COVID-19 positive exposure, and other measures. Employers will also have to be mindful of complying with obligations regarding confidential treatment of medical information with regards to medical testing results. Also, disability discrimination laws need to be considered when making decisions regarding who is selected to return to work based on medical conditions.
Which employees should return to work first?
As it is unlikely for most employers that all employees will be able to return to the workplace at once, employers should consider what employees, departments, groups, or units should return first based on business needs, compliance with ongoing restrictions regarding limitations of operations to “essential business,” and compliance with health precautions such as social distancing. The legitimate business reasons for this selection process should be documented to provide evidence of non-discriminatory selection criteria if later challenged.
What social distancing protocols should employers implement?
Employers will have to comply with federal, state and local directives on social distancing as workplaces reopen. Employers will likely want to consider staggering work hours and alternating days of work for different groups, shifts or teams of employees to reduce the number of employees on site. Employers may want to:
- evaluate workplace layouts and consider making certain stairways and hallways one way if social distancing guidelines cannot otherwise be met.
- use plexiglass shields, tables or other barriers to block airborne particles and ensure minimum distances in the workplace, as recommended by the Equal Employment Opportunity Commission.
- develop protocols to avoid crowding in elevators.
- close or modify certain common areas, such as lunch rooms, time clock stations and workplace fitness centers so that employees can socially distance.
- erect physical barriers or implement rules to limit sharing equipment and supplies. Such rules might require employers to be prepared with additional equipment and supplies before beginning to bring employees back onsite.
- change latch-based door handles so doors open or close through use of an “electric eye” or with a push of the door or a button or push pad, which may also assist with ongoing deep cleaning protocols.
Of course, all such changes must be balanced against maintaining appropriate building security.
Employers should also rethink customer service delivery methods. Employers may go to drive-through or pick-up means of providing customer service and arrange for contactless pay options for customers. Employers may be required to provide certain hours of operation for high-risk customers only, as defined by the CDC.
What employee guidelines will be required?
Employees must comply with social distancing rules in the workplace. Social distancing rules should be communicated electronically and/or in hardcopy at workstations and common areas. Materials should be easy to understand and available in the appropriate language and literacy level for all workers. Employers may want to provide video training to returning employees to introduce them to new workplace rules. Employees should acknowledge receipt of rules and training. Human Resources professionals should train supervisors on how best to enforce social distancing rules. Employees may also be required to wash their hands at specified frequencies, following recommended practice.
May employers allow employees to continue to work remotely?
Yes. Employers should consider which employees may be able to continue to work remotely to allow those who need to be in the workplace to socially distance. The Occupational Safety and Health Administration (OSHA) recommends that employers establish flexible worksites to increase the physical distance among employees. Additionally, we anticipate that many employees may request to continue working remotely despite employers reopening worksites. Employers should consider in advance how they will handle such requests, taking into account the Americans with Disabilities Act’s (ADA) reasonable accommodation requirements for individuals with disabilities.
May employers resume meetings and conferences?
Employers should consider limiting meetings or conferences, and conduct meetings virtually as much as possible. If in-person meetings are necessary, they must be conducted in a manner consistent with social distancing requirements. Federal, state, and local orders regarding group gatherings will need to be considered. Consider posting updated “maximum occupancy” signage on meetings rooms to limit attendance to the number of people who may be in the room while still maintaining the recommended person-to-person distance, removing extra chairs to avoid use of the room by more people at one time than recommended and adding plexiglass shields atop conference tables to help block airborne particles. Employers should also implement protocols for sanitizing meeting spaces between uses throughout the workday.
May employers resume employee business travel?
For the time being, we recommend that employers continue to conduct meetings virtually, and anticipate that initial re-opening authorizations may allow essential travel only. If an in-person meeting is necessary and compliant with federal, state, and local orders, employers should follow the advice of the CDC and applicable public health authorities regarding information needed to permit an employee’s return to the workplace after visiting any identified high-risk location, whether for business or personal reasons.
A more detailed description regarding issues relating to business travel is included below in Section V. Practical Realities: HR Issues.
May employers resume office celebrations or events, and allow employees to arrange celebrations such as office birthday parties?
If employers normally have office celebrations, we recommend holding them virtually. Employers should avoid any work-sponsored or workplace events that involve communal sharing of food, and gently communicate these expectations in advance to employees who may wish to celebrate their reunion by bringing in treats to share. Employers should not provide beverage pitchers, food or sandwich trays, hot food buffets, or a utensil dispenser or basket. We also recommend employers postpone indefinitely in-person events such as company sporting games or team lunch outings due to the challenges of maintaining effective social distancing. Employers must comply with federal, state, and local guidance regarding gatherings, and should review the guidance often, as changes occur.
What policies need to be updated as employees return to work?
Employers should consider whether their existing policies need modification, and review their policies to ensure compliance with all newly enacted laws. For example, many state and local paid sick leave laws have been modified based on COVID-19-related absences, and the Families First Coronavirus Relief Act (effective April 1, 2020) applies to most employers of fewer than 500 employees. Remote and telework policies will also need to be reviewed and revised. Employers might consider an interim addendum to their handbooks and manuals to address these rapidly changing provisions.
Also, employers should have detailed policies on what to do when an employee becomes symptomatic, tests positive or is potentially exposed to COVID-19. The policy should inform employees of the measures taken to ensure employee safety. As referenced below, policies regarding containment measures such as mandatory temperature monitoring, handwashing and face mask usage also need to be implemented and provided to employees prior to their return to work if possible. Employers should also proactively suggest new forms of greeting each other to avoid hand shaking, hugs, back slaps and other forms of physical contact in which people may engage out of longstanding habit. Offer non-contact ideas such as hand waves or other such gestures that signal positivity without touching each other.
To the extent employers will be implementing COVID-19 testing such as swabs or blood tests, policies that detail what is expected in terms of frequency, location of testing, cost, implications of a positive result, HIPAA protections, ramifications for refusing to test, etc. must be carefully crafted and disseminated prior to implementation.
Materials should be easy to understand and available in the appropriate language and literacy level for all workers.
II. Practical Realities: Environmental and Physical Considerations
What logistical considerations should employers consider when preparing for the physical return of its workforce?
Employers will need to consider what supplies may be needed to facilitate a smooth return to work, keeping in mind the CDC guidelines, as well as applicable state and local return to work orders. For example, Delaware is requiring that employers provide employees with a face covering to wear while working in areas open to the general public and areas in which coming within 6 feet of other staff is likely. Thus, employers should pre-order (taking shipping time into consideration) necessary or required products, which will likely include hand sanitizer, paper goods, sanitizing wipes, bottled water, face masks, gloves, etc. Special cleaners may need to be ordered, and personal protective equipment (gowns, gloves, masks) may be needed for any individuals who clean or remove trash. Depending on what state and local governments require, preparations for medical testing, such as electronic or sanitary thermometers, should be considered. In addition, employers should monitor what may be required for on-site COVID-19 testing and/or antibody testing. Employers should consider what supplies will allow employees to minimize time spent in common areas. Additionally, individual workspaces should be prepared with necessary supplies to eliminate the need for employees congregating in a supply room. Employers may want to implement a bring-your-own-refrigerated-lunchbox policy to limit use of common refrigerators. Employers will need to determine if changes need to be made regarding lactation rooms to ensure strict compliance with thorough sanitization protocols. Employers will also have to consider adding additional hand washing stations. Finally, employers should prepare signage and other instructions for employees and visitors to their facilities to avoid any confusion related to containment practices upon reopening.
Are employers required to modify the physical workplace?
It depends. Employers should analyze whether certain workplace modifications are required to maintain social distancing and compliance with other government-issued guidelines. If returning a single department, unit or group is a priority, employers need to consider whether they should implement new seating or work arrangements.
Conduct a detailed evaluation of the physical workspace layout. If any employees work at stations that are within 6 feet of each other, make reassignments to different stations to ensure the minimum distancing — and for employees who work alongside each other on a regular basis, increase the goal to keep these workers 9 to 12 feet apart. If available space does not allow this much separation, evaluate options for staggering schedules as an alternative or adding physical barriers between stations. Employers should also consider whether furniture or work equipment can be reconfigured to facilitate social distancing. For example, removing tables and chairs in meeting, lunch or break rooms may facilitate social distancing and compliance with the CDC guidelines of at least 6 feet of distance between seats. Pay special attention to areas where printers, copiers and other types of shared equipment are located, and consider moving the equipment or designating a single employee to operate that equipment, distribute print-outs, etc.
Employers might consider assigning working groups to different teams and having each team work in a different area of the worksite; this may also assist in providing backup in the event that any working group member tests positive for the virus or reports a direct exposure event.
As noted above, employers should ban communal food. Some states are implementing specific seating requirements, so employers with open area seating arrangements may need to start assigning seating and taking other measures suggested above such as erecting plexiglass barriers. Requirements may be specific to the industry or type of work environment (e.g., laboratory versus office space versus manufacturing or retail floors, etc.).
Are employers required to modify work hours?
This will depend on what guidance is provided by the government, as well as what practically works for an office environment to comply with social distancing orders. Staggering hours, shifts, etc., may be required to ensure employees are sufficiently distant and to minimize the number of individuals congregating in common entry or exit spaces. Similarly, alternating days of work for different groups or teams of employees may assist with social distancing requirements.
Are employers required to maintain new cleaning or hygiene regimens?
A: We recommend that employers deep clean the workplace prior to any employees returning, both as a containment measure, and to help employees feel more comfortable about returning onsite. If there is a skeleton crew in the workplace, try to contain those employees to a specific area while this deep cleaning process is underway so that the occupied area can be cleaned immediately prior to additional employees returning. Food should be removed from common areas and kitchen or break areas.
Employers may need to schedule daily or weekly deep cleans after employees return. A deep clean is advised whenever an onsite employee reports being positive or presumptively positive for COVID-19. Employers should provide disinfectants throughout the workspace for employee use in wiping down surfaces. Employers should note that some states are adopting specific cleaning regimens. For example, Pennsylvania requires that areas visited by a person who is a probable or confirmed case of COVID-19, be closed off with exterior windows open for ventilation for a minimum of 24 hours. The Pennsylvania Safety Measures for Businesses Order is available here. In implementing any cleaning protocol, review the latest guidance provided by the CDC and OSHA.
Can employers require employees to observe infection control practices (e.g., regular hand washing and social distancing protocols)?
Yes. Requiring infection control practices, such as regular hand washing, following proper coughing and sneezing etiquette, and proper tissue usage and disposal, is prudent and does not violate the ADA. Tissues should be provided throughout occupied work areas, with covered disposal receptacles so that employees can discard their used tissues personally and immediately. Employers should consider increasing the number of hand washing stations, and provide breaks as necessary for employees to wash their hands for at least 20 seconds.
Should employers draft safety response policies and communicate them to employees?
Yes, and these policies should include protocols for employees to follow in various COVID-19 related situations. As employees return to work, employers should inform employees of the safety or prevention measures they have taken to ensure employee safety and the protocols employees are expected to follow. Materials should be easy to understand and available in the appropriate language and literacy level for all workers.
We anticipate an increase in OSHA complaints and investigations due to various safety concerns related to COVID-19. See Section XI for additional OSHA considerations.
III. Practical Realities: Employee, Applicant, Vendor and Customer Health Screenings and Other Health Considerations
Can employers require the use of personal protective equipment (e.g., masks, gloves, etc.) in the workplace?
During a pandemic, yes. Employers should also review what is being required and/or recommended by the CDC as well as other federal, state and local government mandates.
For example, Pennsylvania is requiring that employers provide employees masks to wear, and requires that employees wear masks during work hours and Louisiana is requiring that all employees of a business who have contact with the public must wear a mask.
If an employer requires the use of personal protective equipment, can an employee request an accommodation for modified protective gear? Must an employer grant such a request?
When an employee with a disability needs a reasonable accommodation under the ADA (such as non-latex gloves, face shields instead of masks for employees who communicate by lip reading, or gowns designed for individuals who use wheelchairs), or a religious accommodation under Title VII (such as modified equipment suitable for use with religious garb), the employer must engage in the interactive process as with any other request for accommodation. This would include obtaining information from the employee (and his/her health care provider as appropriate), engaging in a discussion about the request, and providing the modification or an alternative, if feasible and not an undue hardship on the operation of the employer's business under the ADA or Title VII. The Equal Employment Opportunity Commission (EEOC) has issued guidance on evaluating undue hardship during the COVID-19 pandemic, which you may read here.
Must employers provide employees with personal protective equipment?
If employers require personal protective equipment, it is best to either reimburse employees or provide it to employees. There are certain wage and hour and state law considerations if employees must purchase certain equipment themselves. For example, in California, employers are prohibited from requiring employees to pay for business expenses. Also, before requiring employees to provide their own equipment such as face masks, employers should confirm availability. If supplies are not readily obtainable, employers should offer options for employees to obtain the needed equipment.
What if an hourly employee reports to work without his/her required personal protective equipment?
If an hourly, non-exempt employee cannot go home and return within a reasonable amount of time, an employer should decide whether to send the employee home with or without pay for the remainder of the day, or to provide him/her with the necessary personal protective equipment. Exempt, salaried employees may also be sent home or provided equipment they do not have, but their pay should not be docked on an hourly or daily basis for reporting to work without required personal protective equipment.
Must hourly employees be paid if they must return home to retrieve forgotten personal protective equipment?
No, the time does not need to be paid. Employers may want to consider paying normal wages for first-time situations, but should apply any such policy evenly.
What if an employee provided with personal protective equipment repeatedly comes to work without it?
If an employee fails to bring the issued personal protective equipment several times over a relatively short time frame, employers should consider documenting the behavior and using its internal disciplinary system. Obviously, employers will still have to provide personal protective equipment to the employee if the employee remains at work. Employers must apply this policy evenly and ensure no one receives different treatment.
Can an employer screen the health of its employees, such as through taking employee temperatures?
Yes. Because the CDC and state or local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions as of March 2020, employers can measure employees’ body temperature. Employers should notify their employees of temperature screening measures in advance and inform the employees that the purpose of temperature screening is solely to protect the employees by keeping individuals with symptoms consistent with COVID-19 offsite and not to determine if an employee has any other illness, impairment or disability. Messaging should make clear that screening is not intended to be, nor is it a substitute for, a clinical diagnosis. We anticipate different types of health screening options becoming available and expect that the government will issue additional guidance regarding such options.
Employers should note that the CDC added new symptoms to its list of possible COVID-19 signs.
Can employers administer COVID-19 tests before permitting employees to enter the physical workplace?
On April 23, 2020, the EEOC updated its Technical Assistance Questions and Answers about COVID-19 and adopted the position that given the current pandemic status, employers may test employees before they enter the workplace to determine if they are infected with the virus. However, to comply with ADA standards, employers have a responsibility to ensure that tests administered are accurate and reliable. To help employers in this evaluation, the EEOC cites Food and Drug Administration guidance on what may be considered safe and accurate testing. The new EEOC guidance also refers employers to CDC and public health authority guidance, with a reminder to monitor these resources for updates. The agency suggests that employers consider whether the test to be used has a high incidence of either false negative or positive results, and reminds employers that testing provides a result at the moment of testing only.
The agency goes on to say that consistent with public health and other medical authority guidance, employers should still supplement any testing with good infection control practices including social distancing and regular handwashing.
This guidance follows ADA requirements that mandatory employee medical testing must be “job related and consistent with business necessity,” and recognizes that any employee infected with COVID-19 who enters the workplace poses a direct threat to others’ health. Employers should keep in mind that this guidance is specific to current pandemic conditions, and if (as we all hope) more effective COVID-19 prevention and treatment options are discovered and the level of threat to the general population abates, it may change.
Employers who conduct testing should take into consideration how potential requests to be excused from a testing requirement for medical or faith-based reasons will be handled, as well as how the confidentiality of data collected during the testing process will be maintained. Also, employers will need to determine whether non-exempt personnel who are required to undergo testing will be compensated for time spent waiting to be tested, taking the test, and, if applicable, waiting for a test result before entering the workplace and commencing work.
From a logistical and administrative standpoint, it is important to consider where the testing will be conducted, and if it is done onsite, how to maintain social distancing for employees waiting to be tested as well as those who may be required to leave the testing site without entering the workplace based on the testing or screening result. Visitor and vendor screening is a further consideration if such third parties will be needed onsite to support the regular workforce’s return to the workplace.
Should hourly, non-exempt employees be compensated for health screening time?
Requirements can vary by location, under both federal and state law, so employers who do not intend to pay non-exempt employees for the screening time or for the time spent waiting to be screened should consult counsel.
What measures should employers take to protect the employees conducting health screening?
Employers should take mitigation measures to protect employees taking temperature readings, including use of physical barriers and/or personal protective equipment which may include face shields to protect against test subjects’ sneezes or coughs. Additional information can be found at OSHA’s website, which provides guidance for health care employees, including recommendations on gowns, gloves, approved N95 respirators and eye/face protection. If employers are using a qualified third-party provider to conduct the screening, they should confirm that such vendors have a protocol in place to minimize exposure risk. If employers will be conducting COVID-19 testing using swabs or blood tests, additional measures will need to be implemented.
Can employers implement screening protocols for customers or workplace visitors?
Yes. Employers should consider the potential complications of not allowing vendors and customers who do not pass screening to come onsite and ensure that such screening is applied uniformly. It is also acceptable to screen visitors before entering a facility (or to simply prohibit visitors altogether). Employers are encouraged to communicate by email or other means to regular visitors, suppliers, and delivery companies explaining their COVID-19 management policy, asking that no person enter their buildings for non-essential purposes and explaining any containment practices that all visitors must follow while onsite.
Employers should also review state and local guidance, which may require customer screening.
What procedures should employers put in place for employee health screening at work?
Employee health screening, either through antibody tests or temperature checks, will likely take place when businesses reopen as such tests become more available, reliable and immediate. For an in-depth look at current screening options, their efficacy, and individual and privacy rights implications related to implementing such screenings, read our guide on Testing Employees for COVID-19. In reviewing states’ reopening orders, we have seen various trends: the requirement (or recommendation) that employers take their employees’ temperatures, the requirement (or recommendation) that employees take their own temperatures before reporting to work, and the requirement (or recommendation) that employers implement a daily health screening protocol for their employees. For example, the Pennsylvania Department of Health recommends that employers conduct temperature screening, particularly in areas with high positive case numbers, but it requires that employers check employees’ temperatures every day they report to work if the employer is aware of a potential or actual exposure. Thus, employers should review state and local orders to ensure compliance.
If such testing is required, employers should train those who will be testing on all steps of the process, including how to sanitize the tools used. We also recommend employers create appropriate forms to record information and be thoughtful about where testing will occur. Employers might consider a space with multiple stations where people can come in and out with a certain degree of privacy. A location near the entrance is preferable to minimize the area of exposure for persons who do not pass screening. Any information gathered, including screening results, must remain protected under ADA confidentiality requirements. This information may not be stored with employee personnel files. See below for additional guidance.
Does workplace screening need to be consistent with the Americans with Disabilities Act (ADA)?
Yes. The ADA permits employers to make disability-related inquiries and require medical exams if job-related and consistent with business necessity. Inquiries and reliable medical exams meet this standard if they are necessary to exclude employees with medical conditions that would pose a direct threat to the health or safety of others that cannot be effectively mitigated in some other manner. A direct threat is to be determined based on the best available objective medical evidence. Guidance from the CDC or other public health authorities is such evidence, so employer actions are defensible under the ADA as long as any screening implemented is consistent with such advice. For example, this may include continuing to take temperatures and asking questions about symptoms (or require self-reporting) of all those entering the workplace. Similarly, the CDC recently posted information on return by certain types of critical workers, available here. Employers should make sure not to engage in unlawful disparate treatment based on protected characteristics in decisions related to screening and exclusion. EEOC guidance on COVID-19, including disparate treatment considerations, is available here.
What if an employee has a temperature or otherwise presents COVID-19 symptoms?
If an employee has a temperature, it is best to confirm a heightened temperature with a second test, in a confidential manner, and to consider any explanation the employee may offer for a heightened temperature. It is reasonable to send an employee home who has an elevated temperature (100.4 degrees Fahrenheit or higher). According to current CDC guidance, an individual who has COVID-19, or symptoms associated with it, should not be in the workplace. If, however, an employee is sent home, the employer should consider how the absence is treated under its sick-leave/PTO policy, employee entitlements to wages for the day, and employee entitlements to any other leave, such as under the Families First Coronavirus Relief Act (effective April 1, 2020), or other applicable federal, state, or local law.
What if an employee refuses to consent to health testing?
If an employer’s policy is that an employee cannot work onsite without submitting to health testing, the employer could bar the employee from work (without pay for non-exempt personnel and also for exempt personnel if the absence from work is for an entire workweek).
Employees can also claim religious exemption to health testing. In this case, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee's sincerely held religious belief, practice or observance prevents him or her from engaging in medical screening, the employer must provide a reasonable accommodation unless it would pose a hardship as defined by Title VII ("more than de minimis cost" to the operation of the employer's business, which is a lower standard than under the ADA). In this situation, a fact-specific inquiry and analysis is likely necessary.
What if an employee is concerned with another employee’s presence in the office because the employee is exhibiting COVID-19 symptoms?
Any employee health concerns should be directed to Human Resources or some other single source such as Employee Health and Safety. As referenced above, employers should have a communicable illness policy with protocols for employees in this situation. Also, employers should be aware of whether paid sick leave laws in their jurisdiction allow for time off due to concerns related to contracting COVID-19 even for workers who are asymptomatic and have not been in close contact with someone is symptomatic.
If and when a vaccine for COVID-19 is available, can employers require vaccination?
Normally, there are exceptions that could prevent employers from requiring a vaccine. Of course, given the current pandemic, this may be an area of the law where we see change. Given the fluidity of the COVID-19 pandemic, it is prudent to await further guidance from the government on this issue once (and if) a vaccine becomes available.
How should employers define close contact, when determining if an employee was in a close contact with someone diagnosed with COVID-19?
The CDC has defined various community exposure possibilities, naming close contact (of 6 feet or closer) for a prolonged period of time. However, the CDC has stated that data are limited to define close contact, and employers should consider factors such as proximity, the duration of exposure (e.g., longer exposure time likely increases exposure risk), whether the individual has symptoms (e.g., coughing likely increases exposure risk) and whether the individual was wearing a facemask (which can efficiently block respiratory secretions from contaminating others and the environment). Furthermore, the CDC has stated that data is insufficient to precisely define the duration of time that constitutes a prolonged exposure. Thus, recommendations vary on the length of time of exposure from 10 minutes or more, to 30 minutes or more. Employers may want to take the most conservative approach when deciding if an employee has been exposed, and make determinations based on exposures of 10 minutes or more. Because the situation is fluid, we also recommend employers review CDC guidance for modifications often.
IV. Practical Realities: Hiring Issues
How should employers conduct employee interviews when hiring?
Employers should consider virtual interviews and onboarding, which will reduce the number of in-person interactions. If in-person interviews are conducted, we recommend employers set certain parameters in place to ensure social distancing (e.g., no handshakes, minimum distance of 6 feet, etc.)
When hiring, may employers screen applicants for COVID-19?
According to the EEOC, yes. 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.
May an employer take an applicant’s temperature as part of a post-offer, pre-employment medical exam?
According to the EEOC, yes. Post-offer, pre-employment medical exams, which would include temperature taking, are permitted after an employer has made a conditional offer of employment.
May an employer delay the start date of an applicant who has COVID-19 or symptoms associated with it?
According to the EEOC, yes. In addition, CDC guidance provides that an individual who has COVID-19 or symptoms associated with it should not be in the workplace.
May an employer withdraw a job offer when it needs the applicant to start immediately but the individual has COVID-19 or symptoms associated with it?
Yes. According to the EEOC, with reliance on current CDC guidance, such an employee cannot safely enter the workplace, and therefore the employer may withdraw the job offer.
May an employer postpone a new hire’s start date or withdraw a job offer because the individual is at higher risk for COVID-19 (e.g., 65 years old, pregnant, etc.)?
No. According to the EEOC, the fact that the CDC has identified those who are 65 or older, or pregnant women, as being at greater risk does not justify unilaterally postponing the start date or withdrawing a job offer. However, an employer may choose to allow telework or discuss with these individuals if they would like to postpone the start dates.
Given remote work, how can one validate I-9s?
There has been a relaxation of in-person I-9 document review, with limitations. Employers with employees working remotely due to COVID-19 will not be required to review the employee’s identity and employment authorization documents in the employee’s physical presence. However, employers must inspect the Section 2 documents remotely (e.g., over video link, fax or email, etc.) and obtain, inspect, and retain copies of the documents, within three business days for purposes of completing Section 2. Employers also should enter “COVID-19” as the reason for the physical inspection delay in the Section 2 Additional Information field once physical inspection takes place after normal operations resume.
V. Practical Realities: HR Issues
Are there any steps employers should take to address workplace harassment related to COVID-19?
Yes. Employers should remind all employees that it is against the federal law to harass or otherwise discriminate against coworkers based on race, national origin, color, sex, religion, age (40 or over), disability or genetic information. There may be additional protected categories under state and local laws. It may be particularly helpful for employers to advise supervisors and managers of their roles in watching for, stopping, and reporting any harassment or other discrimination. An employer may also make clear that it will immediately review any allegations of harassment or discrimination and take appropriate action. Additionally, employers should review any new anti-discrimination laws relevant to the COVID-19 pandemic. For example, New Jersey just passed a law prohibiting discrimination against employees for COVID-19-related reasons. A summary and analysis of this new law is here.
What if an employee does not want to participate in business travel due to COVID-19 concerns?
Absent any prohibitions by governmental authorities, employers may require travel to non-restricted areas the CDC deems safe, particularly if such travel is necessary for the employee to perform essential job duties. However, if an employee does not wish to travel due to COVID-19-related concerns, employers should assess whether the trip is essential. It is better for the employment relationship, and good practice to mitigate legal risk, to consider whether an employer can resolve an employee’s concerns, including by providing personal protective equipment and other options that may help the employee feel safe.
What steps should an employer take if an employee returns from a high risk travel area?
If an employee travels to an area deemed high risk by the CDC, employers may place the employee on a precautionary quarantine status during the incubation period of COVID-19 and require a health care provider release as a condition of return to onsite work. Employers may follow the advice of the CDC and state or local public health authorities regarding information needed to permit an employee’s return to the workplace after visiting a specified location, whether for business or personal reasons.
What if an employee refuses to report to work because they object to taking public transportation, live in or must travel to work through a “hot spot,” or have other such COVID-19-related concerns?
Employers can allow their employees to take paid time off but may want to consider following PTO policies to help ensure a sufficient workforce. Additionally, employers may want to offer hesitant employees unpaid leave.
If an employee believes he or she is in imminent danger, according to OSHA, that employee can refuse to work based on a specific fear of infection that is based on fact, where the employer cannot address the employee’s specific fear. An employer may consider whether the employee can work remotely, or may qualify for an accommodation under the ADA due to being immune-compromised, or whether the fear can be effectively addressed by taking additional containment measures at the facility.
Additionally, employees who are told to self-quarantine by a health care provider or governmental authority because of vulnerability to COVID-19 may be entitled to certain federal, state or local leave entitlements.
May an ADA-covered employer require employees who have been away from the workplace during a pandemic to provide a doctor’s note certifying fitness to return to work?
According to the EEOC, after a pandemic, such an inquiry would be permitted. As a practical matter, however, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp or an email to certify that an individual does not have the pandemic virus. Employers should note, however, that the CDC has asked employers not to require “a health care provider’s note for employees who are sick with acute respiratory illness to validate their illness or to return to work.” Additionally, OSHA recommends that employers encourage sick employees to stay home if they are sick. It follows that requiring medical documentation may deter some employees from staying home when sick. Additionally, employers should note that there may be state or local laws to consider. For example, in San Francisco, the Paid Sick Leave Ordinance prevents employers from requiring a doctor’s note to verify an employee’s use of the Ordinance’s leave during the COVID-19 Local Health Emergency.
Should I direct employees who believe they were infected by COVID-19 at work to submit workers’ compensation claims?
Typically, workers’ compensation covers occupational diseases that are contracted or aggravated due to the nature of a particular kind of work — such as a hospital worker who gets stuck by a needle and contracts a disease. Illnesses transmitted among workers would generally not be covered. Under normal conditions and in most states, to be covered by workers’ compensation, both of the following conditions must be met:
- the illness or disease must be “occupational,” meaning that it arose out of and was in the course of employment.
- the illness or disease must arise out of or be caused by conditions peculiar to the work and creates a risk of contracting the disease in a greater degree and in a different manner than in the public generally.
Thus, again under normal circumstances, employees who by the nature of their profession are exposed to the virus (health care workers, first responders, etc.) would be more likely to be covered under workers’ compensation. For other workers, while it may be possible to for an employee to assert that his or her job involved greater risk (such as when there is an outbreak at a building or plant), coverage would be assessed on a case-by-case basis. The employee would also have to establish that he or she in fact contracted the virus from exposure at work instead of as a member of the general public. Finally, many states have a list of compensable diseases in their workers’ compensation statute, which at this point would not be likely to include COVID-19.
Some states have, however, issued rules to specifically address workers’ compensation coverage for employees who contract COVID-19 and who have remained in jobs working onsite. For example, Minnesota passed legislation that creates a presumption for workers' compensation coverage for first responders and certain health and child care workers who contract COVID-19. New Jersey has pending legislation, and it is likely that other states will follow suit.
VI. Practical Realities: Sick Leave Considerations
What if an employee becomes ill with COVID-19 or is placed on an order of quarantine after we reopen?
The employee may be eligible for Federal Emergency Paid Sick Leave or other state or local leave or paid leave entitlements. That employee may also be entitled to up to 12 weeks of job protected unpaid leave under the Family and Medical Leave Act, subject to their health care provider’s certification, and in some states may be eligible for partial wage replacement benefits through temporary disability insurance benefits from their state.
What if an employee has to take care of someone who is ill with COVID-19 after we reopen, or has to take care of a dependent child whose school is closed due to COVID-19?
The employee may be eligible for Federal Emergency Paid Sick Leave, Emergency Family and Medical Leave (for childcare needs due to school or day care closure) and other state or local leave or paid leave entitlements.
For more on this topic, please read our alert on the Families First Coronavirus Response Act and entries detailing COVID-19-related sick leave developments in New York and New Jersey.
VII. Practical Realities: Disability Related Inquiries and Medical Exams
How will COVID-19 impact the Americans with Disabilities Act (ADA)?
The ADA and Rehabilitation Act, as well as their state and local counterparts, continue to apply during the time of the COVID-19 pandemic, but they do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state or local public health authorities about steps employers should take regarding COVID-19. Employers should remember that guidance from public health authorities is likely to change as the COVID-19 pandemic evolves. Therefore, employers should continue to follow the most current information on maintaining workplace safety.
If a job may only be performed at the workplace, are there reasonable accommodations for individuals with disabilities absent undue hardship that could offer protection to an employee who, due to a preexisting disability, is at higher risk from COVID-19?
According to the EEOC, even with the constraints imposed by a pandemic, some accommodations may meet an employee's needs on a temporary basis without causing undue hardship on the employer. If not already implemented for all employees, accommodations for those who request reduced contact with others due to a disability may include changes to the work environment such as designating one-way aisles; using plexiglass, tables, or other barriers to ensure minimum distances and physical barriers from customers and coworkers whenever feasible per CDC guidance; or other accommodations that reduce the chances of exposure. Temporary job restructuring of marginal job duties, temporary transfers to a different position, or modifying a work schedule or shift assignment may also permit an individual with a disability to perform safely the essential functions of his or her job while reducing exposure to others in the workplace or while commuting.
If an employee has a preexisting mental illness exacerbated by the COVID-19 pandemic, may the employee be entitled to a reasonable accommodation (absent undue hardship)?
Yes. Per the EEOC, as with any accommodation request, employers should engage in the interactive process to understand how a requested accommodation would assist the employee to keep working. The employer may request and obtain medical certification from the employee’s health care provider to assist in exploring an appropriate accommodation plan.
How much information may an employer request from an employee who calls in sick, in order to protect the rest of its workforce during the COVID-19 pandemic?
During a pandemic, ADA-covered employers may ask such employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, sore throat, new loss of smell or taste, or gastrointestinal problems, such as nausea, diarrhea, and vomiting. Symptoms screening should be based on CDC guidance and updated regularly if that guidance changes. Employers must maintain all information about employee illness as confidential medical records in compliance with the ADA.
May employers require that employees stay home if they have COVID-19 symptoms?
Yes, employers may and should restrict such employees from coming onsite. The CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace, and according to the EEOC, the ADA does not prevent employers from following this advice.
Where must employers store on-site medical examination results?
The ADA requires that all medical information, including temperature check results, be stored separately from the employee’s personnel file. Employers may choose to store COVID-19-related medical files with other medical files, or in a separate location, as long as these files are separate from employee personnel files and properly secured to protect the privacy of the data.
What files are considered medical files?
For purposes of COVID-19, medical files include temperature or antibody results, an employee's statement that he or she has the disease or suspects he or she has the disease, or the employer's notes or other documentation from questioning an employee about symptoms.
If an employee discloses that he or she has COVID-19, to whom may employers disclose the identity of the employee?
Per EEOC guidelines, an employer may disclose this information to a public health agency without violating confidentiality obligations. Additionally, according to recently issued EEOC guidance, a staffing agency or contractor that places an employee with a company may notify the company of an employee’s positive diagnosis so that the company can properly determine with whom the employee had contact with at the workplace. However, employers should take care to protect employee privacy, and analyze applicable federal and state privacy laws that may come into play. We recommend employers not share the employee’s identity more broadly without first receiving, in writing, a truly voluntary consent from the employee to do so.
Should an employer postpone discussing accommodation requests with any employees who will not need an accommodation until after the employee returns to work, since the employee is currently working remotely?
No. Per the EEOC, the employer may be able to acquire all the information it needs to make a reasonable accommodation decision before the employee returns. If a reasonable accommodation is granted, the employer also may be able to arrange for the accommodation in advance.
What if an employee was already receiving a reasonable accommodation prior to COVID-19 and now requests an additional or altered accommodation?
The employee may be entitled to additional or different accommodations. The employer may discuss with the employee whether the same or a different disability is the basis for a new request and why an additional or altered accommodation is needed.
Should employers still engage in the interactive process during the pandemic?
Yes. An employer may ask questions or request medical documentation to determine whether an employee's disability necessitates an accommodation, either the one he or she requested, or any other alternative form of accommodation. Questions for the employee may include: (1) how the disability creates a limitation, (2) how the requested accommodation will effectively address the limitation, (3) whether another form of accommodation could effectively address the issue, and (4) how a proposed accommodation will enable the employee to continue performing the "essential functions" of his position. However, given the pandemic, an employer may forgo or shorten the exchange of information between an employer and employee known as the "interactive process" and grant the request. In addition, when government restrictions change, or are partially or fully lifted, the need for accommodations may also change. Employers may adapt the interactive process — and specify end dates for the accommodation — to suit changing circumstances based on public health directives or other considerations such as timing of the employee’s return to a physical work location.
Can the pandemic itself be a relevant consideration in deciding whether a requested accommodation can be denied because it poses an undue hardship?
Yes. Because “undue hardship” means “significant difficulty or expense,” an accommodation that would not have posed an undue hardship prior to the pandemic may pose one now. If a particular accommodation poses an undue hardship, employers and employees should work together to determine if there may be an alternative that does not pose such problems.
VIII. Practical Realities: Employer Tenant/Landlord Considerations
What should employers who lease space discuss with their landlords?
Employers should inquire about any health screenings that landlords may be conducting as a condition of allowing individuals to enter the building. Employers should also discuss sanitation measures that will in place for common areas as well as logistics such as social distancing measures on elevators and in common stairwells and lobbies.
IX. Practical Realities: Union Considerations
My workforce is unionized. What protocol must I follow to bring my employees back to work?
Before returning unionized employees to work, employers should check their respective collective bargaining agreements for language that controls how to recall employees after a layoff. If recall procedures are not in an isolated article or section of the collective bargaining agreement, articles related to seniority, layoffs, strikes or lockouts may contain language relevant to recall rights and obligations.
The National Labor Relations Board (the NLRB) considers recalls from layoffs to be a mandatory subject of bargaining. Unilateral changes to recall procedures may violate an employer’s duty to bargain in good faith under Section 8(a)(5) of the National Labor Relations Act (the NLRA). To the extent that recall procedures are outlined in a collective bargaining agreement, adherence to those procedures will reduce the risk of unfair labor practices.
What if my CBA does not have language that controls recalling employees after a layoff?
If there is no recall language in the collective bargaining agreement, the employer should give the union notice, and an opportunity to bargain before a deciding on, or implementing, a recall process. The notice should be far enough in advance (typically 7 to 10 days) so that the union has a meaningful opportunity to bargain. If the union does not request to bargain over recall procedures, then the union likely waives the right to negotiate and the employer may unilaterally implement its recall procedures.
In late March 2020, the NLRB’s General Counsel released guidance concerning an employer’s bargaining obligations in unforeseen emergency situations that are caused by external events that are outside the employer’s control and require the employer to take immediate action such as economic emergencies, natural disasters, terrorist attacks and inclement weather. While the NLRB has given employers leeway to act unilaterally during these types of emergencies, exceptions to the obligation to bargain are typically construed narrowly. Given the unprecedented impact the coronavirus has had on the health of workers and the U.S. economy, and dependent on an employer’s individual circumstances, there may be justification for implementing certain recall procedures absent traditional bargaining obligations.
However, given the time between government-mandated shut downs of non-essential businesses and the potential upcoming reopening, it is possible the NLRB could determine that employers have ample time to bargain recall policies with unions.
Thus, the prudent course in the absence of relevant recall language in a collective bargaining agreement, is for employers is to provide unions with notice and an opportunity to bargain over the terms and conditions of employee recall procedures. If the union requests to bargain and the employer and the union are unable to reach an agreement (i.e. impasse), then the employer may unilaterally implement the recall procedure.
What if employees do not want to return to work because of safety concerns?
While generally an employee’s refusal to return to work is grounds for termination, employers should consider whether employees are doing so because of safety concerns related to COVID-19.
Employees’ refusal to work due to a good-faith belief that working conditions are abnormally dangerous may be seen as concerted activity under the NLRA. The NLRA extends protection to employees with a good-faith belief that dangerous conditions exist even if that belief is ultimately mistaken. The Board has held that employees’ belief need only be supported by “ascertainable, objective evidence” to qualify as a good-faith belief. Given the highly contagious nature of COVID-19, employees could demonstrate a good-faith belief that abnormally dangerous working conditions exist. Thus, before taking action in response to an employee’s refusal to return to work, employers should inquire as to the reason for the refusal and consider whether it implicates employee protections under the NLRA.
The NLRA does not consider any concerted refusal to work due to abnormally dangerous conditions to be a strike. Accordingly, no-strike clauses cannot prevent such action.
To avoid staffing shortages or prolonged employee absences, employers may consider partnering with the union to inform employees that the employer is maintaining a safe work environment in accordance with relevant federal, state and local guidelines. However, employers should be mindful that changes to working conditions to maintain a safe work environment for recalled employees, such as increased use of personal protective equipment or staggered work shifts, are mandatory subjects of bargaining. Accordingly, before implementing such safety protocols, employers must give unions notice and an opportunity to bargain over these changes. For more details on mandatory bargaining in this situation, please see the next question.
Alternatively, employers may hire temporary replacement workers from a staffing agency to accommodate immediate labor needs. Although a concerted refusal to work due to dangerous conditions constitutes neither a strike nor a lockout, the NLRA does not explicitly prohibit the employer from hiring replacement workers in that situation. Employers may hire replacement workers so long as that hiring is not improperly motivated.
Do I have to bargain new safety protocols with the union if we don’t have contract language requiring it?
Possibly. Employers should first examine the language of their collective bargaining agreement closely. If the agreement grants the employer broad management rights or explicitly permits the employer to unilaterally implement protocols related to operations and plant safety, the employer will not need to bargain new safety protocols. Likewise, if the collective bargaining agreement provides that the union waives the right to bargain regarding changes to safety protocols, then the employer is free to implement new safety protocols. Even in the absence of an “express” waiver in the contract, the NLRB reviews a union’s waiver of the right to bargain an employer’s unilateral change by applying an employer-friendly “contract coverage ” 1standard. Under this standard, the NLRB recognizes an employer’s right under a collective bargaining agreement to act unilaterally relating to matters that are broadly referenced within the “compass or scope” of the employer’s authority under the plain wording of the contract. Therefore, broad language in the contract regarding an employer’s authority relating to safety and operations, including the employer and union’s past practices and bargaining history related to such topics, could serve as evidence that the union has waived the right to bargain over such matters.
An employer may also be privileged to unilaterally enact new safety protocols where a “compelling economic exigency” supports the employer’s reasons for doing so. Such circumstances must be compelled, caused by external events, be beyond the employer’s control, or must not be reasonably foreseeable. Thus, an employer may be required to proceed with changes to its safety protocols before bargaining to agreement or impasse with the union because of an economic exigency created by the COVID-19 pandemic. The General Counsel’s recent guidance emphasizes the narrowness of the economic exigency exception. The NLRB permits employers to respond to the immediate threat posed by the economic exigency but given any substantial amount of time to respond, the employer should attempt to bargain any changes. The employer must provide the union with notice and an opportunity to bargain about such changes, including safety protocols when reopening its business.
X. Practical Realities: Employee Benefits Considerations
What should employers be considering from a benefits standpoint when employees return to work?
Employers will need to consider a variety of employee benefits issues, starting with whether the employee is considered a new hire for purposes of the employer’s various benefit plans and plan notices. This will likely depend on a variety of factors, including (1) whether the employee was actually terminated from employment or placed on a furlough or leave, (2) if placed on leave, whether it was a paid or unpaid leave, (3) how long the employee was not performing services for the employer and (4) what the applicable plan documents say. Further, the answer may differ depending on the type of benefit plan at issue. For example, for 401(k) plans, if the returning employee is treated as a new hire, the plan’s automatic enrollment procedures may apply. On the other hand, for employees returning from an unpaid leave, it may be appropriate to simply continue to apply the existing deferral election as pay is reinstated. Employers should also review the plan to determine how the period of no service counts for purposes of vesting and service credit. Particular attention needs to be paid to any frozen plans. To the extent an employee is treated as a new hire, he or she may be ineligible to participate in a defined benefit plan that has a soft freeze (e.g., a plan that limits participation to employees hired before a certain date). For health plans, applicable large employers subject to the employer shared responsibility requirements and using the “look-back” method for determining full-time status will need to determine if the employee is an ongoing employee with a period during which no hours were performed, or a new hire subject to a new initial measurement period. If considered an ongoing employee, the employer will need to determine if the employee earned any hours of service while on leave (e.g., if it was a paid leave). Notice obligations may also apply. For example, if the employee’s health plan coverage terminated and the employee is now re-enrolling, there may be an obligation to provide the initial COBRA notice and/or HIPAA privacy notice. In addition to qualified and welfare plans, employers should also consider the impact (if any) under their nonqualified plans and whether the returning employee’s deferral election may be continued (or whether the employee is treated as a new hire for purposes of the nonqualified deferred compensation plan). Employers should carefully review plan terms, as well how the individual was treated during the period when no services were performed, as they look to address benefits coverage for returning employees.
XI. Practical Realities: OSHA Guidance
What Has OSHA Indicated Regarding Work Practices?
In general, OSHA guidance includes the following:
- Practicing appropriate social distancing and maintaining at least 6 feet between co-workers (and work stations), where possible. (This may mean conducting meetings electronically, using e-mail, phone calling and/or texting in place of group meetings).
- Establishing flexible work hours, such as staggered shifts, if feasible.
- Discouraging shared use of things such as phones, tools, desks or other equipment.
- Encouraging telecommuting or work from home where feasible, thereby limiting worksite exposures where appropriate.
- Training workers on how to properly put on, use/wear, take-off and maintain protective clothing and other equipment, including the use of face coverings (consistent with the CDC’s and OSHA’s recommendations).
- Training should include advising employees to stay away from the workplace and to seek medical assistance if they are ill.
- Allowing (or requiring) workers to wear face coverings/masks over their nose and mouth to prevent spread of the virus, subject to ADA provisions such as reasonably accommodating workers who have conditions preventing or restricting such use.
- Monitoring public health communications (including from the CDC, OSHA and local health authorities) about COVID-19 recommendations for the workplace and ensuring that workers have access to and understand that information.
- Promoting respiratory etiquette of covering coughs/sneezes and personal hygiene by encouraging workers to frequently wash hands with soap and water for at least 20 seconds and providing ready access to soap and water for handwashing, providing hand sanitizer stations or alcohol-based hand rubs containing at least 60% alcohol.
- Providing disinfectants and disposable towels for use in cleaning work surfaces, work stations and work areas (used in accordance with manufacturer instructions).
- Encouraging workers to report any safety and health concerns.
Some other suggestions include consideration of:
- Regular deep cleaning of work areas, stations, and other facilities (e.g., break rooms, rest rooms, cafeterias, etc.) using appropriate disinfectants and sanitizers (in accordance with manufacturer instructions).
- Regular supervisory monitoring and enforcement of work rules such as maintaining appropriate social distancing, use of personal protective equipment, etc.
- Use of workplace shields or partitions where appropriate to reduce the risk of sneezes/coughs from reaching other workers in close proximity.
Some relevant links to OSHA and CDC guidance include:
Beyond these links, here are some other direct links to OSHA or CDC guidelines on control, prevention, and personal protective equipment points:
- OSHA standards and directives regarding COVID-19
- OSHA measures for protecting workers
- OSHA guidance on hazard recognition
- CDC interim infection prevention and control recommendations for confirmed of suspected COVID-19 in health care settings
Finally, OSHA has suggested a poster that can be placed in the workplace relating to COVID-19 precautions:
- See MV Transportation, 368 NLRB No. 66 (2019).
Many employers are now planning to move employees back into the workplace as state and local stay-at-home orders expire and other COVID-19 business restrictions expire or are modified. What are the various considerations employers must keep in mind when reopening their physical work locations?
This Retail Appendix to the Question and Answer Guide describes a number of COVID-19 employment and return-to-work considerations specific to various types of retailers.
This information has been updated as of June 3, 2020.
A. Restaurants and Bars
What do restaurants owners need to know about outdoor seating?
Even as restaurants are being asked, or in many cases required, to reduce indoor dining capacity, they are also being encouraged to take advantage of outdoor seating to the extent possible. The CDC’s latest guidance encourages restaurants to “prioritize outdoor seating” over indoor seating. Many states and cities are allowing unlimited outdoor seating as long as social distancing measures remain in place. In certain areas, cities are helping restaurant owners accommodate safe outdoor dining by closing nearby streets or parking lots for use as table seating. As you consider opening outdoor dining options, think about the following:
- Ensuring any outdoor safety hazards are addressed.
- Accessibility (for both customers, including those with disabilities, and employees) of the outdoor dining area.
- Customers and employees will likely still need access to indoor restrooms, which means that staff should be trained to explain the safest route to the restroom, and you should have a mechanism in place to ensure people are not congregating in waiting areas to access the restroom or other indoor facilities.
Finally, remember that even though many areas are encouraging outdoor seating, all state and federal guidance thus far has indicated that restaurants should continue abiding by social distancing and other mitigation efforts (e.g., sanitation, use of disposable products, etc.) even in outdoor areas.
Do restaurants have to require reservations?
Some states, like Minnesota, are requiring restaurants to use call-ahead seating or online reservations in order to eliminate customer waiting (including walk-in diners congregating near entrances and host stands). To the extent you permit walk-in service, you should be mindful of social distancing requirements in waiting areas.
May restaurants seat large groups?
Probably not. In most states that are allowing restaurants to reopen, there are limits on the number of people who can sit at a table together, from two to six people maximum.
Do restaurants have contact tracing obligations?
Maybe. As states continue efforts to reopen, questions regarding the obligations of retailers, including restaurants and bars, to keep track of customer information for contact tracing purposes remains largely an open question. It is possible that states will look to restaurants (which often track this information via reservation systems) to aid contact tracing efforts. For example, in Washington, restaurants offering in-person dining are encouraged (but not required) to keep a log of names, phone numbers, email addresses and arrival times for all in-person diners in order to facilitate the state’s contact tracing efforts.
Are there any specific food preparation requirements that restaurants need to follow?
The Food and Drug Administration (FDA) has posted several temporary policy bulletins regarding food safety considerations related to the pandemic, including regarding food labeling requirements; growing, harvesting, packing, and holding produce and other perishable goods; and packaging and labeling eggs. The FDA has also published a best practices guide for restaurants during the pandemic. In addition to following FDA and local health department rules, restaurants should consider the following:
- Cleaning prep stations and high-touch surfaces more frequently.
- Avoiding self-serve food stations (see below).
- Assigning staff to particular duties or stations, in order to limit possible cross-contamination.
May restaurants use self-serve food stations (e.g., salad bars, fountain drink stations, buffets, etc.)?
In some cities and states, self-serve food stations of any type are prohibited. Other states have not weighed in specifically on the issue; however, CDC guidance is to avoid offering self-serve food options — including buffets, salad bars and drink stations — in order to minimize customer movement throughout the restaurant surface contact.
May, or must, restaurants require diners to wear face masks?
Many states are requiring people to wear face masks while in public in any setting in which social distancing may not be possible, without any specific exemption for restaurants. Some states, like Colorado, have issued guidance encouraging restaurant patrons to wear face masks when dining indoors, except while eating or drinking.
Should restaurant owners treat food waste differently than they have previously?
Most likely, yes. According to CDC guidance, restaurant owners should take extra care with food waste, including requiring employees to wear gloves when clearing food from dishware, and using gloves when handling and disposing of garbage bags. Employees should remove gloves and thoroughly wash their hands after clearing dishware and disposing of garbage bags. Restaurants are also encouraged to utilize disposable food containers where possible, so that food waste and storage containers are disposed of together at the same time (removing the need for the added step of dishwashing).
Should table setting practices be modified?
Some areas, like California, are requiring restaurants to discontinue “pre-setting” tables with napkins, cutlery, condiments, and other tabletop items such as napkin holders, flyers, or place cards. Instead, tabletop items should be (1) single use where possible (e.g., single use salt and pepper packets, as opposed to salt and pepper shakers), and (2) provided to customers only as needed. This guidance also applies to tabletop items in common areas, such as peppermint dishes. Restaurants should also avoid the use of tablecloths or other linens, and, to the extent they are used, they must be replaced or thoroughly cleaned between uses.
Are restaurants required to use disposable products?
Some states are requiring the use of disposable or digital menus, as well as disposable napkins, cutlery, dishes, condiments, etc., to the extent possible. If single use products are not feasible, shared items must be thoroughly sanitized between each use (i.e., for tabletop items, between each seating).
What about to-go containers? May restaurants let customers take leftovers home?
Probably, yes. Some jurisdictions have no specific guidance for to-go containers, and others are requiring that takeout containers be filled by customers (not staff), and that the containers be available only upon request (as opposed to being available to customers in a shared space or common area).
May bars reopen?
In most areas, not yet. Most state and local governments are only allowing in-person dining services to reopen at this point, excluding bars that do not offer food. And, restaurants that have a bar area have been advised not to utilize bar seating in order to maintain appropriate social distancing measures. However, some states, such as North Carolina, are also permitting breweries, wineries, and distilleries to reopen — following the same guidance as traditional restaurants — as long as those establishments also have food offerings (e.g., via outdoor food trucks or other food service partnerships).
B. Personal Health and Beauty Retailers
What type of special containment measures should personal health and beauty service providers take in order to prevent the spread of illness/coronavirus?
Personal health and beauty retailers, such as hair and nail salons, barbershops, day spas, massage therapy centers, yoga studios, and fitness centers have special considerations because of the personal nature of the services provided, which often involve close contact with their customers. Many states and localities have issued guidelines for such close-contact personal service providers, and employers will have to comply with applicable state and local directives. The actions personal care service providers should prepare to take include the following:
- Wearing personal protective equipment, such as non-surgical masks, face shields, safety glasses and gloves, as appropriate.
- Cleaning and disinfecting all workstations, service chairs, towels, sheets, gowns/robes, capes, smocks, trays, chairs, shampoo and pedicure bowls, hoses, spray nozzles, wax pots, treatment rooms, counters, reusable tools, point of sale equipment and other items used by customers or employees between each use, in accordance with CDC guidelines.
- Making services available by appointment only with adequate time in between each appointment to allow for cleaning and disinfecting. Appointments should be staggered to comply with social distancing and occupancy limitations. Clients should wait outside or in their cars until notified by phone call or text message that the service provider is ready to service them. Only those receiving services should be allowed inside the premises, except for a parent or guardian accompanying a minor child or a caregiver accompanying a disabled individual.
- Ensuring ventilation systems operate properly and increase outdoor air circulation by opening windows and doors as much as possible.
- Removing magazines, catalogues, newspapers, candy dishes, beverage services and product samples from the facility.
- Arranging hair stylist/barber work stations, service chairs, shampoo bowls, pedicure bowls, foot and nail drying stations, fitness equipment and massage tables to allow six feet between clients.
- Reserving certain hours of operation for high risk populations.
- Maintaining a log of employees and customers on premises over time to support contract tracing, if necessary.
- Encouraging contactless pay transactions whenever possible, including asking customers to provide tips through Venmo and Zelle rather than cash.
- Posting signage about safety precautions and notify customers that services will not be offered to anyone who is sick or exhibiting signs of illness. Add markers to help facilitate social distancing and install physical barriers between the customer and the employee during face-to-face services, as appropriate, such as for manicures and at the reception area.
- Suspending late/cancellation fees if a customer cannot keep an appointment due to illness.
May personal health and beauty retailers screen customers for COVID-19 symptoms and take temperatures?
Yes. Screening clients through measuring body temperature and requesting confirmation that an individual has not been symptomatic of COVID-19, recently traveled, or been in close contact with someone exhibiting symptoms of COVID-19 in the last 14 days is recommended.
May personal health and beauty retailers require customers to wear face masks or cloth coverings in order to receive personal care services?
Yes. Because many personal health and beauty retailers provide services that do not allow for social distancing, such as haircuts, manicures, pedicures, and massages, it is especially important to have staff and clientele use face masks during such personal care services. Personal service retailers may want to consider supplying disposable masks and gloves to their patrons for convenience. If a customer needs to remove a face covering for a brief time (less than five minutes) while receiving services, such as while at the shampoo sink, the service provider should provide a clean towel for the client to hold over his or her mouth and nose.
What should personal health and beauty retailers do if a customer refuses to wear a face mask or cloth covering or comply with health screening questions?
In that situation, retailers should first confirm whether the individual has a disability or health condition and needs an accommodation under the ADA, without asking about the specific underlying condition. If an individual needs an accommodation because of a disability, the retailer should engage in the interactive process to determine if there are alternative methods of protection that would permit the customer to receive the personal care services without direct threat to the health or safety of the customer or personnel providing the services. If a non-disabled customer refuses to wear a face mask or covering out of preference, the retailer may decline to provide services in the interest of promoting the health and safety of its employees and other customers.
Personal care service retailers should notify customers that they will be required to wear a face mask and/or be screened for temperature and other symptoms of COVID-19 upon arrival for any service appointment. Retailers should educate their clientele about the precautions they are taking and communicate expectations for their customers through their website, social media, telephone, text message and/or email. In addition, personal service retailers should post signage indicating that services will not be provided to anyone who is sick, exhibiting symptoms or refuses to wear a face mask or cloth covering. Personal care service retailers may want to consider translating the signs into languages other than English to facilitate clear communication. If a blind or visually impaired customer enters the premises, have an employee available (such as a receptionist or manager) who can read the precautionary safety requirements to the customer before the customer proceeds into the salon or shop to receive services.
Are there services that personal health and beauty retailers should avoid at this time?
Yes. Health and beauty retailers may want to consider temporarily suspending any services that would require a customer to remove his or her face cloth covering or mask for more than a brief period of time, such as facials, mustache or beard trimming, and facial hair waxing. In addition, some states, such as Delaware, New Hampshire and Connecticut, prohibit or limit the use of blow dryers. Fitness centers should close or modify capacity limitations in areas where social distancing cannot be maintained otherwise, such as locker rooms, saunas, steam rooms, whirlpools and racquetball courts.
What are some best practices for cleaning shared equipment?
Personal health and beauty retailers should take additional precautions related to cleaning and disinfecting shared equipment in accordance with CDC and OSHA guidelines. Spas and beauty salons should clean and disinfect shared tools, such as scissors, combs, brushes, nail polish bottles, files, and nail trays after each use. In addition, spas and beauty salons should consider using disposable plastic wraps or liners over manicure and pedicure bowls, whenever possible.
For fitness centers and yoga studios, any shared exercise equipment should be cleaned and disinfected after each use. Similarly, each studio room should be sanitized after each in-person class. If customers are permitted to bring their own fitness equipment such as yoga mats, weights and foam rollers, the retailer should provide disposable disinfectant wipes, cleaner or spray so customers can wipe down their personal fitness equipment, as well as any frequently touched surfaces on shared fitness equipment.
How can personal health and beauty retailers comply with social distancing protocols?
Many states are implementing maximum occupancy limitations for retailers in order to ensure social distancing. Therefore, spas and beauty salons will need to limit the number of appointments they accept in order to comply with such directives and staff their facility accordingly. Yoga studios and fitness centers may want to consider having instructors and personal trainers provide lessons virtually and allow members to log in from home to watch live classes and get real-time feedback from instructors and trainers. Alternatively, yoga studios and fitness centers may consider implementing online advance bookings for fitness classes and limiting the number of customers to comply with social distancing requirements allowing six feet between each person. The number of customers permitted in the studio would depend on the size of the studio. Other members could attend the class virtually through an online platform.
Fitness centers should consider reconfiguring floor plans and equipment arrangements to ensure that fitness machines, workout areas and stationary equipment are at least six feet apart.
In addition, proper ventilation is important to prevent the spread of illness. Therefore, yoga studios and fitness centers may want to consider holding classes in an outdoor location, weather permitting, or opening windows and doors to allow for additional air circulation.
C. Clothing Stores and Specialty Retailers
May clothing and specialty retailers require customers to wear face masks?
Clothing and specialty retailers may generally require customers to wear face masks while shopping in their stores, so long as they do not discriminate against those unable to wear a mask due to a disability, or against those requesting a religious accommodation under Title VII of the Civil Rights Act (such as a modified mask suitable for use with religious garb).
Face mask requirements are subject to compliance with state and local rules, however. In Oregon, for example, retailers who require customers and visitors to wear face coverings must develop a policy and post clear signs about any such requirement, and must allow for exceptions to accommodate people with certain health conditions and children under the age of two. Further, Oregon law provides that retailers must make reasonable modifications to any such policy to allow people with disabilities to access store services.
May clothing retailers allow customers to try on apparel and accessories in the store?
In some states, such as Connecticut, fitting rooms are currently closed by government order. Even in states not mandating the closure of fitting rooms, however, many retail clothing stores have chosen to close them for the time being.
Retailers who do allow customers to try on clothing in their stores should sequester any apparel that has been tried on before offering it for resale, subject to any additional requirements of state or local law. Though there are currently no definitive studies regarding how long the coronavirus may linger on fabric, there are studies showing the virus can survive on other surfaces for anywhere from a few hours to three days. Accordingly, many retailers have adopted policies keeping apparel that has been tried on and/or returned off the sales floor for 24 to 48 hours, and some merchants take any such items out of sales circulation for 72 hours.
In addition to adhering to heightened cleaning practices throughout their establishments, retailers allowing customers to try on clothes in the store should strictly enforce cleaning protocols for fitting rooms, including ensuring they are thoroughly cleaned after each customer use. Moreover, stores should consider limiting the number of fitting rooms they offer, and they should be spaced at least six feet apart, preferably with at least one empty room in between each dressing room open for customer use.
Retailers may require customers wanting to try on clothes or accessories to wash their hands with soap and water prior to touching the garments or items. If soap and water are not readily available, retailers may require potential buyers to use hand sanitizer prior to touching merchandise and/or upon entering the store. In addition, some merchants who are permitting customers to try on apparel are limiting the number of items being displayed, providing only one size of each clothing item on a rack, and others are restricting the number of clothing items that a customer may try on during a single store visit.
How should clothing and specialty retailers handle returns and exchanges?
Subject to state and local laws, clothing retailers are handling returns and exchanges in a variety of ways. A number of apparel merchants have suspended their return and exchange policies altogether, while others have adopted strict return policies and will only accept returns of items that can be properly sanitized prior to resale. Other retailers are accepting returned clothing and accessory items, but are holding them in quarantine for anywhere from 24 to 72 hours prior to releasing them for resale.
Many retailers are also restricting the manner in which purchased items can be returned or exchanged, in some cases restricting returns to curbside-only transactions, with the customer required to wait in his or her vehicle with the item to be returned until a store employee can come out and retrieve the item.
What steps should retailers take to protect high-risk customers?
Some states, such as Texas, have issued guidelines that include protocols for retailers to adopt to protect at-risk customers, such as dedicating a certain period of time each day for only at-risk customers, or delivering purchased goods to vehicles to reduce the need for at-risk customers to enter a store. In addition to complying with all applicable state and local directives, retailers should consider providing dedicated in-store visit hours for individuals at higher risk of severe illness from COVID-19. If possible, retailers should also consider offering personal shopping appointments (in person, or virtual) for high-risk customers, allowing them to shop for merchandise via videoconferencing technology or with only a limited number of individuals in the store.
Some retailers have expanded their online shopping presence generally, in response to the current outbreak, offering more products and delivery options for all customers. Individuals who fall within the high-risk category for COVID-19 illnesses may appreciate receiving information about these online shopping and delivery services, many of which now offer same-day delivery, rather than enter a brick-and-mortar retail or specialty store.
D. Other Considerations for “Big Box” and All “Brick and Mortar” Retailers
What kind of training should retailers implement for employees?
All retailers should strongly consider, and certain states require, training for all employees on the importance and expectation of increased frequency of handwashing, the use of hand sanitizers, and avoiding touching hands to face. Other recommended trainings include:
- Proper use of personal protective equipment, including face coverings and gloves.
- Protocols for when an employee experiences COVID-19 symptoms.
- Protocols for reporting work safety issues and reporting fellow employees and customers who violate safety protocols, including refusing to wear protective face coverings.
- Proper methods of cleaning and disinfecting surfaces as recommended by the CDC using products that are EPA-approved for use against the virus that causes COVID-19.
- Any other training that would educate employees about COVID-19 prevention strategies.
Retailers should look to specific state and local law and guidance on recommended and required training for employees.
Are retailers limited to curbside pickup, or may they allow in-store shopping for customers?
It depends. For example, in New Jersey, where COVID-19 cases have been prevalent, non-essential retail businesses cannot allow customers to enter brick-and-mortar premises, but New Jersey does allow for curbside pickup while limiting in-store operations to employees responsible for operating curbside pickup.
Other states are now allowing in-store operations and shopping to resume, but are imposing additional occupancy limits on the number of customers allowed in a location at one time to ensure adequate social distancing. North Carolina, for example, is limiting customer occupancy to no more than 50% of the stated fire capacity. West Virginia recommends that retailers allow only two people per 1000 square feet. Delaware restricts retailers even further, limiting retailers to accepting only two appointments per half hour.
Retailers should therefore look to specific state and local law and guidance to determine how many customers (if any) may be allowed in brick-and-mortar stores at a time. To ensure compliance with these limited occupancy requirements, retailers should consider the following:
- Establishing an appointment schedule to reduce excessive or unnecessary interaction.
- Encouraging customers to place orders online or over the phone and arrange for contactless payment, pickup, and delivery.
- Implementing internal traffic flow patterns and providing assistance with routing through aisles.
- Controlling access points and monitoring all entrances in order to track occupancy, and providing a single, clearly designated entrance and separate exit where possible.
- Providing designated times for seniors and other high-risk populations to access services.
- Limiting areas where customers tend to congregate.
- Preparing to queue customers outside while still maintaining physical distance, including through the use of visual cues and/or having an employee posted near the entrance to track occupancy and direct customers to the queue if the location has reached its occupancy limit.
What kinds of signs should retailers display?
Many states and local authorities are recommending, and in some instances requiring, that certain signage be posted at retail locations. For example, if a retailer requires that customers wear protective face coverings to enter the store, a sign should be posted conspicuously at the entrance of the retail location.
Many states and local authorities are also implementing stricter than usual occupancy limitations. Such occupancy limitations typically range from 20% to 50% of a store’s normal occupancy limit, or limit the number of customers who can be within a certain square footage (e.g., one customer per 200 square feet). To go along with these stricter limitations, states and local authorities are requiring that retailers conspicuously post these “emergency maximum occupancy rates” to inform customers.
To ensure proper social distancing, retailers should post signs at main entrances reminding customers to stay six feet apart and should mark six feet of spacing in lines at points of sale and in other high-traffic customer areas. To further ensure social distancing and limit foot traffic, retailers should consider making aisle traffic one-way only, and post signs to assist in directing customers. Additional signage that retailers should consider includes:
- Signs asking that customers not enter the store if they are or feel sick.
- Signs requesting that customers temporarily cease using reusable bags.
- Signs informing customers on pick-up/carryout options.
Retailers should also strongly consider posting signage on health policies to educate its employees and customers on COVID-19 best practices. Consider the following CDC: Stop the Spread of Germs and CDC: COVID-19 Symptoms posters.
What logistical/operational modifications should retailers undertake as they reopen brick-and-mortar locations?
Before opening their doors, retailers should carefully evaluate protocols and procedures concerning logistics and operations to support social distancing efforts and protect employees and customers from the spread of COVID-19. Consider taking the following measures, which are in line generally with CDC and OSHA guidance, and state and local law:
- Adjusting store hours of operation to provide adequate time for regular deep cleaning and product stocking, to allow for temperature checks or wellness screenings at the beginning of shifts as recommended by the CDC, and to limit in-store foot traffic.
- Installing plexiglass “sneeze guards” at cash registers and points of sale as recommended by OSHA.
- Staggering employee work hours and breaks to ensure social distancing in common areas such as break rooms.
- Performing frequent and routine cleaning and disinfecting of high touch areas, such as tables, doorknobs or handles, restrooms, cash registers and points of sale.
- Acquiring and distributing PPE (e.g., protective face coverings and gloves) to protect employees and customers.
Retailers should be mindful that certain pre-shift activities, such as conducting temperature checks and wellness screenings of employees, may be considered compensable time under the Fair Labor Standards Act and state and local wage/hour laws. Additional guidance on FLSA issues that may arise can be reviewed here.
How should retailers handle returns and exchanges?
The CDC recently issued a press release clarifying prior guidance regarding the spread of COVID-19 via indirect contact from a contaminated surface. The CDC confirmed the possibility that a person may contract COVID-19 by touching a surface or object that has the virus on it. This possibility is a concern that retailers must address, and they should review applicable state and local laws concerning how to handle returns and exchanges.
Section III above provides specific guidance on how clothing and specialty retailers are handling returns and exchanges. Additionally, retailers should consider:
- Implementing procedures for safely handling, processing and disinfecting returned items.
- Storing returned items in designated areas separate from other merchandise.
- Waiting one to three days before placing returned items back on the sales floor (and considering whether returned items should be placed back on the sales floor at all).
- Modifying, or even suspending, return and exchange policies.
Retailers should educate customers on any modified return policies and procedures for processing returns by posting information in stores, on its websites and social media pages, and in emails or newsletters to customers.
As the number of cases around the world grows, Faegre Drinker’s Coronavirus Resource Center is available to help you understand and assess the legal, regulatory and commercial implications of COVID-19.