Re-Opening for Business: 3 Critical Issues Every Employer Needs to be Planning For

More than a month after almost everywhere in the country has been subject to “stay-at-home”/”shelter-in-place” orders, everyone is anxious  to return to a sense of normalcy – especially with regard to business and returning to the workplace. However, as Texas and several other states begin to loosen up physical distancing guidelines and “open up for business” this week, employers and business owners will be facing a variety of difficult issues with their employees and their business.  These legal and business concerns must be addressed while trying to return to a productive and profitable venture in the midst of an especially challenging economic environment.

(1)          Staffing Decisions

The reality of the current state of the economy means that though businesses may re-open, commerce will not instantaneously snap back to pre-pandemic levels. Consumer confidence remains very low. A majority of the population in the country is still in favor of orders to keep people in their as opposed to opening up interaction too quickly.  Many people remain apprehensive about going back to their former levels of buying goods and services.

As a result, most employers whose businesses have been temporarily shuttered will not be able to return their entire staff immediately.  This means that employers will be faced with deciding which employees need to be brought back and for how many hours each. In addition to considerations like how efficient, productive, and flexible an employee is, decision-makers need to be aware of potential legal concerns in these decisions.

Some examples of potential pitfalls in re-employment decisions are:

·        Determinations that Appear to be Motivated by Protected Characteristics -- Employers will have to be careful not to mistakenly use “protected” characteristics, such as age, race, or ethnicity, as false substitutes for an employer’s reasonable concerns about the health of its workforce.  Though most employers know to be non-discriminatory in their employment decisions, businesses also may be highly-sensitive to the fact that COVID-19 exposure is a continuing danger.  As a result, employers may rightfully be considering the relative vulnerabilities of their employees. Since data has shown that older individuals are more likely to suffer serious health consequences if they are exposed to COVID-19 and the mortality rates associated with the virus for individuals of African- and Hispanic-American descent has disproportionately been higher than Caucasians, employers may inadvertently consider age, race or ethnicity as a “proxy.”  Individualized decisions still need to be made.

·        Availability to Work  -- With most schools and daycare centers closed, many employees with school age children may have different obligations that limit or prevent them from being able to come to work.  In addition, many employees may have concerns about returning due to their own or one of their family member’s immune-compromised health condition. The Texas Workforce Commission issued guidance just yesterday (April 30th) that clarifies that in these conditions and a few others, such as being ill with or caring for someone with COVID-19 or self-quarantining, an individual can refuse to return to work at their re-opened businesses and continue to receive unemployment. 

·        Payroll Expenses   -- The payment treatment of hourly and exempt employees should be kept in mind as well.  Hourly employees are only paid for the actual time that they are performing work for their employers.  With reduced hours of operation or necessary work, businesses will only be responsible for paying for the measurably proportionate share of work of their hourly employees.  However, under normal circumstances, exempt employees are to be paid the full amount of their regular salary for all workweeks in which they perform any work.  Failure to do so can lead to converting an exempt employee into a non-exempt employee for whom the employer has different record-keeping and overtime obligations. As the Department of Labor has allowed that an exempt employee’s salary can be reduced prospectively due to an economic downturn in business without harming his or her exempt status, it is advisable for employers to obtain confirmation from their exempt employees that they understand and accept the reduction in pay before it occurs.

(2)          Safety Measures

Employers and managers must recognize that the re-opened workplaces need to be subject to a “new normal” in which there will be additional concerns for health and hygiene.  To minimize the possibility of liability for claims that employees, their families, or customers contracted COVID-19 because of business operations, businesses should be implementing best practices for minimizing the risk of spread. Thus, managers and business owners should familiarize themselves with and understand the recommended measures that the Occupational and Safety Health Administration (“OSHA”) and Centers for Disease Control (“CDC”) have published specifically regarding coronavirus exposure in the workplace. Generally applicable measures can be found in OSHA’s “Guidance on Preparing Workplaces for COVID-19” and CDC’s “Interim Guidance for Businesses and Employers to Plan, Prepare and Respond to Coronavirus Disease 2019.”  Both of these agencies also continue to issue more specific guidance, such as CDC’s guidance about safety practices for employees who may have had exposure to COVID-19 to continue to work, and OSHA’s guidance regarding specific worker groups, such as retail workers, janitorial services, and healthcare providers.

Though knowledge will be important, implementation of many of these measures will require planning and thought as well so as to consider potential legal liabilities in these efforts:

·        CDC’s safety practices for workers that had exposure to COVID-19 (found HERE) call for pre-screening and regularly monitoring such employees and having them wear a mask.  Employers should strongly consider taking these measures for all employees, but also remembering that data has demonstrated that this disease is often carried and transmitted by people who are a-symptomatic.  In implementing these measures, employers will need to plan with regards to whichever pre-screening method is chosen, (e.g., temperature taking or oxygenation measuring) and whether employee’s privacy concerns may be infringed upon in addition to the potential exposure to the disease the employees who are taking such measurements have. Some employers might also choose to accomplish the goal of pre-screening without conducting  a medical procedure, such as requiring all employees to conduct an on-line survey each day before reporting to work to confirm that they are not experiencing fever or symptoms and have no known exposure to persons with the coronavirus.

·        Physical Distancing – as we all know by now, physical distancing is a key to minimizing spread of the disease.  This will mean that employers will have to plan carefully with regards to how the operations of their businesses can be conducted while keeping adequate space between co-workers, as well as in interaction with the business’s customers. Employers may need to re-arrange work spaces, designate only certain doors for entry or exit, and implement practices that restrict employees’ movement only into specific areas or spaces.  Common areas such as break rooms and kitchens will also need to be restructured or usage should be limited. When in-person interaction is necessary, the business may need to require that masks be worn or that physical barriers, such as acrylic shields, be installed to reduce the chance of droplets from an infected person being transmitted to employees.  The policies and guidelines for these changes should be communicated as early and as clearly as possible, with signage reminding employees of the new protocols.

·        Logistics and Supplies – OSHA and CDC’s guidance emphasize the need for both personal and corporate hygiene that is at a more elevated level than past practices. In order to truly implement these practices, businesses will need to have adequate supplies of hand sanitizers, soap, tissues, disinfectant solutions and wipes.  In addition, increased worksite cleaning will need to be arranged for. As many of us have experienced, the demand for these types of products and services is outweighing the immediate supply.  Though a mundane issue, an employer’s claim that it was implementing hygiene measures seriously will be undermined if that business did not make available to its employees the means to maintain such practices.

(3)          Planning for Difficult Scenarios

Given the highly contagious-nature and spread of COVID-19 as well as the current lack of a vaccine or treatment plan, employers must be planning for the very real possibility that one or more of their employees will test positive for the disease after having returned to the workplace.  Beyond making sure that any employee that begins to show symptoms of the disease (CDC has now expanded its list of identified symptoms) be sent home or that any employee who tests positive self-report, employers must also consider how it will address its obligations to its other employees.

·        CDC recommends that employers inform their employees of any confirmed cases of COVID-19 (detailed HERE) in the workplace.  Furthermore, employees who were within 6 feet of the employee for a prolonged period of time are considered to have been exposed to the virus and if they show symptoms, should self-isolate.  CDC recommends that even exposed employees who are not showing symptoms should remain at home and practice social distancing for 14 days. These recommendations make clear that a confirmed case of COVID-19 in the workplace may affect ongoing staffing, as it will require the recommended absence from work of potentially several employees for several days. As a result employers and managers should be making plans on employee staffing, spacing, and reporting times with an eye towards minimizing the risk of several critical employees being required to be removed from the workplace and hampering ongoing operations due to one of them being diagnosed as having the virus. These considerations should also affect decisions about the need for in-person meetings and how they will be conducted among two or more decision-makers.

·        For businesses in which work requires that employees not be at a set location throughout the work day or have a variety of interactions, employers will need to implement or establish a means of knowing the whereabouts of their employees and with whom they had significant interactions so that the company can determine to whom an employee with a confirmed case of COVID-19 may have exposed the virus.  Keeping such a log or record of interactions may feel uncomfortable for employees, as in many workplaces, individuals feel that they should not have to be “monitored.” However, such a practice or protocol will be important to allow employers to identify which other co-workers, customers, or vendors are at risk and to avoid a general shutdown of all operations as a precaution.

Though having to plan for these critical issues can be daunting, employers must be willing to face these difficult challenges that the new “normal” of the workplace presents.  Failure to do so will likely lead to worse results. It is important for managers and business owners to communicate to their employees that they are making their best efforts in these unprecedented times and that the changes – and inherent inconveniences – are being done so that jobs can be preserved.  The vast majority of Americans will recognize that we are all going to come out of the pandemic by working together.

Here to work with you,

David Quan

DISCLAIMER: The Law Office of David J. Quan provides this communication for general information only. This communication does not, nor does it intend to, provide legal advice or create an attorney-client relationship. Each legal problem is unique, and past performance does not guarantee future results. Persons with legal issues should consult their attorney for specific advice regarding their individual situations