April 27, 2020

Planning For The Rebound: Step 1 – Requirements For Returning To The Workplace

On January 25, 1925, President Calvin Coolidge famously stated, “The business of America is business.” Of course, that was only four years before the stock market crashed, sinking the country into a decades-long Great Depression, leading some to question the soundness of his evaluation.

Nearly a hundred years later, Americans are hearing similar mantras from their leaders: It is time to reopen our businesses. But what does that mean, to reopen? Are we closed now, or are we just changed? What does the future hold for the American workforce? How do we, as employers, treat our employees fairly, keep them safe, and try to get back to business as usual?

This blog series, Planning For The Rebound, attempts to answer these fundamental questions.

What does a safe and healthy reopening look like for California employers? The answer is not simple – and be forewarned, it will change as scientists learn more about this pandemic. But any analysis must start somewhere, and for California employers the starting point is obvious. Since March 19, 2020, most California workers have been ordered to stay at home by Governor Gavin Newsom. California employers have attempted to adapt by asking employees to work at home and, sadly, by furloughing or laying off others.

So, what will a return to the workplace look like when Governor Newsom’s order ends?

Answer: Everyone needs to be involved, and you may need help from workplace experts. The Occupational Safety and Health Administration (OSHA) has issued a Guidance on Preparing Workplaces for COVID-19, but it raises as many practical questions as it answers.

Ultimately, you will need input from all levels of employees to understand the day-to-day implications of their work lives, in three key areas:

  • how they work,
  • how often they interact with others, and
  • what they see as the greatest risks to their safety.

You will need input from middle managers and your HR department as well, and you should consider seeking advice from workplace safety consultants and legal counsel as to specific decisions you need to make.

Social distancing has become a necessary component of American life during the quarantine, and experts believe that to stay safe, it must continue. To that end, employers will need to require social distancing in the workplace. Here are some rules you should consider:

  1. Limiting the density of your employee populations at work
  2. Prohibiting outsiders from entering the workplace, except in very specific, regulated situations
  3. Finding alternatives to front desk personnel through remote security systems
  4. Staggering restroom breaks and hallway usage
  5. Reducing face-to-face employee interaction in the workplace, if necessary by creating one-way foot traffic
  6. Ending the use of shared spaces, such as common kitchens, fitness areas, and conference rooms

Employers need to require employees to use personal protective equipment (PPE) such as face masks and gloves at work at all times, regardless of whether they are in an enclosed office or in a common workspace, such as a factory floor. Employers must also insist on the highest of sanitary practices by having ample cleaning supplies, disinfectant, sanitizer, and soap in the office.

Easier said than done, right? Where are we supposed to find needed quantities of those supplies when there appears to be a country-wide shortage? Good question. Some bulk suppliers still have these supplies available in bulk quantity. Right now, while employees are still away from the workplace, is the best time to stock up. Encourage employees to reuse whatever equipment can be safely reused. Consider buying more durable face masks for employees, for example.

The EEOC has allowed employers to take employee temperatures and administer COVID-19 tests to employees, with some limitations: (1) that the tests are accurate, and (2) that results must be kept confidential.

This begs some important questions – first and foremost, how do employers perform these tests? Temperatures can be taken by using a handheld thermometer that is placed against an employee’s forehead for a few seconds, and there are vendors who offer mass-use thermometers already in the marketplace.

COVID-19 tests are a different story, however, as there is no reliable, publicly available test yet, and there are many reports of fraudulent tests in the marketplace. We will update you with developments on COVID-19 testing as it emerges.

What do you do if someone has a high temperature, a cough, or any other potential signs of infection? Keep them home until they show no such signs for 24 hours.

Some studies have suggested that public transportation, particularly in congested cities, can be linked with the spread of COVID-19. On the one hand, people can be infected with coronavirus and exhibit no symptoms, so it is possible that your regular bus-rider or subway-taker may have COVID-19 and not even know it. On the other hand, many employees rely on public transportation to travel from home to work. Should they be forced to stay home?

To the greatest extent possible, if users of public transportation can effectively work from home, they should continue to do so. But this decision must be made on a case-by-case basis.

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Ultimately, this is just a starting point and, as with anything, the devil is in the details. You will have to decide many other issues before you can safely reopen. This blog series, Planning For The Rebound, will help you spot the issues and deal with them effectively.


Questions about COVID-19 and the workplace? Contact the Hirschfeld Kraemer lawyer who normally provides your legal advice, or you can reach out to Dan Handman in the Los Angeles office, dhandman@hkemploymentlaw.com, (310) 255-1820.

For additional employer-focused information about COVID-19:
Click here to see the Hirschfeld Kraemer EMPLOYER’S GUIDE TO CORONAVIRUS