As Safer-at-Home transitions to Safe-at-Work, two new issues have emerged for employers: (1) Can I require everyone to return to the workplace?; and (2) What new operational considerations are presented as my employees return?
The General Duty Clause of the Occupational Health Safety Act, historically the stepchild of employment safety standards, is suddenly front and center. While it has long required that employers provide a safe and healthy workplace, compliance now requires that employers consider the inter-play of the Equal Employment Opportunity Commission (“EEOC”) and Centers for Disease Control (“CDC”) guidance, as well as state, county and/or city orders as employees return to work during the public health emergency. Such considerations may include:
- Do we have to screen employees, including taking temperatures and using questionnaires (of prior diagnosis, symptoms, travel, exposure) and if so, how often?
- What kind of pre-return communications are needed (e.g., don’t take fever reducer before you are temperature checked)?
- Where do we screen (Do we allow employees to self-certify or have trained employees/contractors conduct temperature screens in the parking lot/cars before the employee exits the car)?
- What equipment do we use for temperature screens (and if infrared, is an oral check required following a positive)?
- Must we compensate employees for screening time?
- Is there anything we can’t ask on the questionnaire?
- Do we need to maintain all of this information and if so, how?
- Can we ask for a doctor’s note or COVID‑19 test result?
- Do we handle the re-entry of employees who have tested positive differently?
- How do we handle the re-entry of employees who have not tested positive but suspect they have had COVID‑19?
- Do we handle the re-entry of high risk/vulnerable employees differently?
- What new policies do we need (distancing, PPE, sanitizing, screening visitors)?
Unfortunately, the answers to these questions may vary depending upon the workplace location and industry. Sometimes, the guidance is advisory; other times, it is a mandate. In Montgomery, Alabama, for example, there is no applicable city or county ordinance, and the state defers to the CDC’s recommendations. Whereas Dallas, Texas is subject to the following varying standards:
- The State of Texas recommends sending employees home if they have a temperature of 100 degrees or more (vs. CDC recommendation of 100.4 degrees);
- Dallas County does not permit employers to require a negative COVID-19 test or a note from a health care provider before a COVID-19 recovered employee can return to work, prohibits an employee from working if someone in the household has tested positive for Coronavirus (except for Essential Healthcare Operations who may continue to work in accordance with CDC guidance) and requires that employees of private businesses and nonprofits with six or more employees in the City of Dallas be permitted to use their paid sick leave when they are sick or to care for sick family members; and
- The City of Dallas requires, to the greatest extent possible, that all employers comply with the State Minimum Standard Health Protocols found here.
And, in many jurisdictions, the expectations/rules vary by industry – sometimes imposing greater rules (e.g., for food service and/or laundry).
Hall Render Can Help
It will be difficult for an employer with operations in a single location to keep abreast of rapidly changing, sometimes contradictory regulatory expectations. Those with multi-site operations will be even more challenged. Hall Render attorneys are prepared to provide a customized, easy to navigate resource tool identifying the return-to-work requirements and recommendations for each of your locations, specific to your industry(s), consolidating CDC, state, county and city directives, all with an eye to applicable EEOC guidance. We will then update the tool weekly, to ensure that you have timely notice of any changes. While an example of the tool can be found here, we are able to customize the tool further to address your specific needs and will offer the resource at a discounted rate to our clients.
If you are interested in the time savings and consolidated information available through this resource, please click here to contact us.
For additional information about how we can help with your COVID‑19-related employment concerns, please contact Robin Sheridan at (414) 721-0469 or rsheridan@wp.hallrender.com or your regular Hall Render attorney.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot—outside of an attorney-client relationship—answer an individual’s questions that may constitute legal advice.
