The Centers for Disease Control (“CDC”) has issued new guidance which will dictate how employers can resume business and safely start the “return to work” process. The overall focus of the guidance, which purports to “change the way people work,” is that employers should implement systems and procedures that can prevent and reduce transmission of COVID-19 in the workplace.
First, it must be understood that the guidance is not law, and thus employers are not mandated to do anything the CDC recommends. CDC guidance, however, may well become a rallying cry for employees who want job accommodations and greater leeway in the workplace including the flexibility to work from home or the use of revised work schedules. Employers will have to balance those requests with the needs of their business.
In some cases, the CDC’s recommendations – particularly when it comes to modifications of the workspace or work schedules – may leave employers between a rock (making the workplace safer) and a hard place (having the workplace function).
The CDC also recommends employers to discourage the use of mass transit, which creates challenges for employers in cities where mass transit is the only option for some employees to get to work.
In addition to these points, the CDC does provide a number of useful tools to help employers to ramp back up. Employers should use these tools as a guide to make smart decisions in implementing return-to-work policies that will promote a safe and functioning work environment. Below is a summary of some of the considerations employers should start to think about, with corresponding links to some of the CDC’s resources.
THE OFFICE ENVIRONMENT
The CDC recommends a number of measures to ensure that building/facilities are in a safe and healthy condition, which we are not going to cover here. For more detail see COVID-19 Employer Information for Office Buildings.
The CDC also recommends employers to consider the office environment where employees work daily. Mainly, they recommend employers to limit or curtail the use of open and shared spaces, including open offices, kitchens, break-rooms, conference rooms, and areas where employees may interact with members of the public, such as reception areas or service desks.
Does this mean you need to shut down open/shared spaces completely?
No, and that may not be practical if you are in an area where employees bring food and must use a kitchen to store the food or heat it. Additionally, you may need a department to occupy a shared space as there is no other place to seat them.
What is essential in these situations is that you need to examine these shared spaces and take steps to minimize contact of employees within them. The CDC recommends employers:
- Modify or adjust seats, furniture, and workstations to maintain social distancing of six feet between employees.
- Install transparent shields or other physical barriers where possible.
- Arrange reception or other communal seating area chairs, by spacing, or removing chairs to maintain social distancing.
- Use methods to physically separate employees in all common areas of the facility including work areas and other areas such as meeting rooms, break rooms, parking lots, entrance and exit areas, and locker rooms.
- Use signs, tape marks, or other visual cues such as decals or colored tape on the floor, placed 6 feet apart, to indicate where to stand when physical barriers are not possible.
- Replace high-touch communal items, such as coffee pots, water coolers, and bulk snacks, with alternatives such as pre-packaged, single-serving items.
For more detail see Checklist #3, Maintain a Healthy Work Environment.
THE WAY EMPLOYEES WORK
Perhaps the most challenging elements facing employers will be the changes to how and when employees work.
The CDC recommends that employers consider rethinking how employees work in the office environment, and suggests that employers:
- Encourage social distancing in the office.
- Require use of cloth face coverings (if appropriate) for both employees and customers.
- Where employees use public transportation:
- If feasible, offer employees incentives to use forms of transportation that minimize close contact with others (e.g., biking, walking, driving or riding by car either alone or with household members). The CDC suggests offering reimbursement for parking or commuting to work alone or single-occupancy rides and asking employees to follow the CDC guidance on how to protect yourself when using transportation.
- Allow employees to shift their hours so they can commute during less busy times.
- Ask employees to clean their hands as soon as possible after their trip.
- Use technology to promote social distancing (e.g., telework, virtual meetings).
- Cancel group events.
- Ask sick customers to stay home; post signs asking them not to enter if they are sick.
- Consider policies that encourage “flexible sick leave” and alternative work schedules.
- Schedule stocking during off-peak hours.
For more detail see Worker Protection Protocol Tool.
Employers should refer to and, where sensible implement, the CDC’s guidance to create processes that make the workplace safer for employees.
There is no doubt that a workplace that is safer for employees will result in better morale, healthier employees, less business interruption, and better outcomes long-term.
But, employers should also be aware that the CDC’s guidance is not law, and there is no mandate that employers implement all of these recommendations, particularly those which change the way employees work, and which will burden or impose strain on business operations.
There are a few examples which stand out, such as:
What if your employees must use mass transit?
Practically, providing employees “incentives,” to minimize public transportation, as the CDC recommends, may not be possible (during an already strained time) for many employers. And, even if employers could encourage employees to refrain from using public transportation, employers have limited control over how their employees get around outside of work hours.
If an employee says they will not or cannot come in because they are concerned about use of mass transit, employers have a few options:
- Is the employee disabled and is this a request for an accommodation?
If NO – There is no law which says that you must accommodate an otherwise healthy employee who must take mass transit to get to work. However, as states reopen, employers should be aware of any developing guidance on this issue. As an example, New York, has issued guidance on its phased reopening plan that recommends employers allow telework where feasible. In addition, employers should evaluate each employee individually, as there may be fertile ground for associational discrimination claims.
If YES – The ADA does not require employers to accommodate a commute, but employers should be flexible. Case law suggests there may be some instances where a commute related accommodations may be reasonable. See e.g., Nixon-Tinkleman v. New York City Dep’t. of Health, 434 F. App’x. 17, 20 (2d Cir. 2011) (reversing district court order granting defendants summary judgment on plaintiff’s failure to accommodate claim stating that the “district court should have considered whether defendants could have reasonably accommodated [plaintiff’s] needs by simply transferring her back to Queens or another closer location, allowing her to work from home, or providing a car or parking permit.”). The accommodation process is always unique to the employee, the position, and the request.
As recommended by CDC guidance, employers can also consider offering employees:
- Staggered shifts for employees to commute during off-hours;
- Telework, where possible; or
- Transportation alternatives, such as a van service for employees to get to the office.
What if you can’t offer staggered shifts or telework, as this is the office manager or receptionist who must be in the office and working by 9 a.m.?
In the case where an employee cannot telework and a staggered shift is not possible, the answer is they must come in to work and be there on time. Some business operations simply won’t allow for employees to modify their hours. Retail businesses need employees to work during set hours. Law firms rely on the presence of administrative staff to keep the office running and may not be able to accommodate requests for staggered start times.
Unfair as it may be, and in spite of the CDC’s guidance, some employees just need to be in the office. Indeed, even in the context of disability accommodations, courts have been split as to whether employers must accommodate requests related to commuting, including changes to employee schedules.
What if you must have an in person meeting?
Social distancing in the new workplace is a must. However, there are times when business must be done in person. That can still happen, with the correct measures in place.
If a meeting must occur in person, then employers should first and foremost consider whether the in-person meeting requires the participation of vulnerable employees. If yes, consider allowing those employees to participate by teleconference.
As the CDC recommends, to maintain healthy business operations, employers should always try to establish social distancing practices. In the context of an in-person meeting this would include limiting the number of participants, requiring physical distance (six feet between people), requiring all meeting participants (clients and vendors alike) to wear face coverings, and when possible holding meetings in well ventilated spaces.
Some companies are also setting up small ‘pods’ of employees who must work together regularly, and limiting their interaction with other employees outside of the pod. That way, you achieve the benefit of the in-person interaction, but limit the number of people who are being exposed to each other in the workplace.
What if an employee must travel for business?
As the CDC guidance points out, the overriding principle should always be employee safety. But employers must balance the need for safety, with a common-sense application of the CDC’s guidelines. Non-essential travel should, of course, be limited. But, if business needs mandate travel, then employers should take additional precautions by educating employees how to stay safe during travel, or by taking steps on an employee’s behalf to reduce the amount of time traveling employees are exposed to crowds at airports and spent on flights. For example, employers could consider paying for TSA PreCheck, or a second seat. In addition, employers should advise employees who travel to check for and report any symptoms before and after travel and have a screening process in place for employees once they return from travel.
It is clear we are not returning to the workplace that we left in March, or whenever your offices shut down. That said, with some common sense and care, every employer should be able to get their employees safely back to work, and get back to running their business.
As you go forward, please reach out to your Kelley Drye professional for guidance.