On May 28, 2020, In light of the novel coronavirus disease (COVID-19) public health crisis and state and local orders related thereto, most employers have either shutdown or significantly reduced their in-person operations. As many jurisdictions begin to lift or ease stay-at-home orders, it is important that employers carefully consider the many employment laws and other applicable regulations that govern plans to return some or all employees to physical workspaces. As outlined below, this process should not be a “return to normal,” and instead should involve proactive planning and thorough documentation of safety measures undertaken to protect employees during this transition to the “new normal.”
Establish a COVID Coordinator/Response Team
Employers should designate one or more employees to serve as the point-person(s) for coordinating the organization’s COVID-19 response. These individuals should be identified early on, as their active involvement in developing and implementing your Return to Work Plan will be instrumental to its level of success. Among other responsibilities discussed below, this Team will be responsible for monitoring and upkeep of the Return to Work Plan, once implemented. As such, it is important that this Team include people who are comfortable consulting with your legal, financial, tax, and benefits consultants when necessary.
Develop a Return to Work Plan
The Response Team’s first task should be confirming whether (and to what extent) your organization is authorized to re-open under all applicable government orders. Once your Team is certain that re-opening is permitted, their next task will be to establish a Return to Work Plan, which should include the following considerations.
The Plan should address when and how employees will return to work. This analysis should include identifying priority positions or duties and considerations of which employees may be high-risk pursuant to Centers for Disease Control (CDC) guidance. If your organization has applied for and/or received a Paycheck Protection Program loan, the Plan should also consider whether certain employees need to return to work sooner for purposes of maximizing loan forgiveness. The Team should prioritize thorough documentation of the legitimate business reasons guiding these decisions to mitigate or, if necessary, defend against discrimination or other actionable claims if these decisions are later challenged.
The Plan should also specify whether these groups consist of employees that have been terminated, laid off, furloughed, or continued to work on adjusted schedules. Each of these situations will require different steps to restore such employees to “the new normal,” such as variations in notice requirements (including with respect to affected employees and the Employment Development Department), documentation, and benefit eligibility.
The Team should also assess whether any new hiring will be necessary to meet the needs of the organization while reopening. If so, COVID-19 hiring procedures should address, at a minimum, modified interviewing procedures (such as video or telephone interviews), Form I-9 considerations (including the updated form, exceptions to certain requirements during the public health, and annotations related thereto), and any benefit or policy modifications due to COVID-19 that may be inconsistent with the organization’s standard New Hire Packets.
The Plan should next address what procedures will need to be implemented to ensure the safe return of employees. This should include the content and method of providing training and education to employees on revised policies, social distancing and other COVID-19 mitigation measures in the workplace, and safe completion of any employee health checks (such as self-certification, temperature checks, or COVID-19 testing). The Team should be prepared to assess any necessary Consent Forms these procedures will require and whether the organization has the capabilities to complete this training in-house or whether legal or human resource professionals should be involved in administering employee education.
Next, the Plan should establish procedures for effectively communicating with employees who are returning and those awaiting their return. Such communication should include directing all questions to a single source (such as the Team or a specific member of management).
Preparing the Workplace
While each organization’s timeline will vary, your Team should carefully ensure that employees should not return to work before the workplace is physically prepared for their presence. While the Team’s considerations should certainly encompass OSHA’s Guidance on Preparing Workplaces for COVID-19, it should not stop there. At a minimum, your Plan should address the following:
- Enhanced cleaning and sanitation protocols, including ensuring adequate supplies will be available prior to employee returns (taking into consideration any local shortages or shipping delays).
- Social distancing protocols should be tailored to your workplace and practices, including limits on in-person visits, staggering shifts and/or meal and rest breaks to avoid large gatherings or crowding of entry/exit spaces, and face covering requirements or recommendations.
- Physical workspace alternations, including installation of physical barriers, providing ventilation, accessing availability of space and workplace layouts, walkway management to avoid bottlenecks and heavy traffic areas, and methods to avoid equipment sharing.
- Visitor protocols, including screening procedures, altered delivery methods, and face covering requirements or recommendations. The Plan should not only address what protocols will be implemented, but also how they will be communicated to those outside of your workforce, such as the viability of e-mail or social media blasts and the location of any on-site announcements or signage.
COVID-19 Response Plan
No Return to Work Plan would be complete without a detailed COVID-19 Response Plan that anticipates the precise steps to be taken in response to an employee or visitor’s confirmed or presumptive COVID-19 diagnosis. The Plan should address removing the individual from the workplace, notifying potentially-exposed individuals while maintaining the potentially-infected individual’s privacy, communicating with the potentially-infected individual regarding their return to the workplace, and notifying public health officials, if appropriate.
The COVID-19 Response Plan should also consider proactive measures that can be taken to minimize the impact of any possible workplace exposures, including cross-training employees on key duties to ensure continuity of operations.
Update Key Employment Policy Documents
The Team should assess whether existing employment policy documents (1) are up to date; and (2) address COVID-specific concerns returning employees are likely to have. In all likelihood, this is not the case. As such, before employees begin to return, the Team should develop a plan to review and update key employment policies, including:
- Employee Handbooks (including as assessment of whether a revised Handbook or temporary Handbook Addendum would be more appropriate);
- Standalone wage and hour policies (especially if schedules will be altered);
- Remote Work Agreements for employee who will begin to (or continue to) work remotely;
- Policies and forms related to employee requests for leave under the Families First Coronavirus Response Act;
- Your Injury and Illness Prevention Plan and Code of Safe Practices;
- Anti-Discrimination, Harassment, and Relation policies and training;
- Business-related travel policies;
- Customer Acknowledgment of Risks and Waiver (if applicable); and
- Employee Acknowledgment of Required Safety Procedures.
Proactive Preparation for Discrimination, Harassment, and Retaliation Concerns
Employers should be prepared for employee’s heightened awareness of and/or sensitivity to discrimination, harassment, and retaliation issues related to COVID-19, in part due to increased exposure to news stories regarding the same while self-isolating. The Team should take this opportunity to ensure understanding of, and compliance with, applicable laws prohibiting discrimination, harassment, and retaliation in the workplace and take proactive steps to prevent the same from occurring. For example, the Team should consider updating policies and procedures for reporting concerns of discrimination, harassment, and retaliation or other workplace safety concerns, including systems of anonymous reporting, where practical.
The Team should also ensure an understanding of the organization’s obligations to engage in the interactive process when certain disclosures or requests are made by employees or when the employer otherwise becomes aware of triggering information. As employees return to work, employers may face increased requests for disability or religious accommodation brought on by new workplace policies and procedures, including physically modified workplaces and requirements with respect to personal protective equipment (PPE).
The Team should be tasked with responsibility to engage in ongoing monitoring of new or revised guidance from government and health agencies and with industry-specific considerations, such as those applicable to the construction, food, and healthcare industries in California. Finally, as employers should be aware, local government regulations may impose additional requirements with which the organization must comply. The Team should be educated about and prepared to access all such regulations and guidance on an ongoing basis.
While this publication provides general guidance about key assessments employers should undergo before and when returning employees to work, we strongly encourage employers to consult with their legal, human resources, financial, and tax professions when developing and implementing any such plan. Kring & Chung LLP provides regular employment advice and counsel to clients across a number of California industries. Our attorneys can assist with preparation of all documents referenced above (many of which can be provided at a fixed fee), and with tailoring COVID-related policies and procedures to your specific workplace.
Kyle D. Kring is a Managing Partner of Kring & Chung, LLP. He can be reached at (949) 261-7700. Kerri N. Polizzi is an Associate of Kring & Chung, LLP. She can be reached at (949) 261-7700.
[Disclaimer: Please note that during this time of crisis, the updates, advisories and regulations that we receive from the promulgating agency often contain ambiguities and/or are often amended, modified or updated. The opinions expressed herein are based on our reasonable interpretation of the issuing agency’s publication at the time the opinion is expressed and is therefore subject to change based on further developments. The effect of the opinions expressed may be different based on your particular circumstances, and it is recommended that you not rely upon these general opinions prior to obtaining a consultation with your legal and/or financial advisors.]
 More information about PPP loans is available in our general overview of the CARES Act and our follow-up publications regarding maximizing loan forgiveness and the loan application’s economic uncertainty certification.
 For additional information about the FFCRA, please review our prior publication on the Act.
 For example, the City of Los Angeles has mandated Supplemental Paid Sick Leave for certain employees performing work within the City.