Light may be in sight at the end of the COVID-19 tunnel for some Washington state employers. Governor Inslee’s Safe Start plan, announced on May 4, is a phased approach to re-opening Washington’s economy for business. Each phase will be at least three weeks in length. Health data and metrics will determine when Washington state can move from one phase to another. Oregon’s governor issued a plan to begin reopening the state and its businesses on May 15, assuming certain health metrics are met. Alaska began Phase One of Reopen Alaska Responsibly on April 24. Businesses must comply with the mandates issued in each state where they operate, so you should confirm those requirements before opening up for business and bringing employees back to work. The following checklist should help your business develop a safe workplace plan for doing so.
Checklist for Reopening Your Business:
- Continue to Comply with Workplace Safety Guidelines. Businesses that are reopening must still follow social distancing and sanitation measures consistent with the U.S. Department of Labor’s Guidance on Preparing Workplaces for COVID-19 (DOL Guidelines). In Washington, employers should also consult the Washington State Department of Health Workplace and Employer Resources and Recommendations (WA Dept. Health Guidelines). Washington’s Safe Start plan explicitly states that employers must maintain safe and healthy facilities as businesses reopen. This includes maintaining social distancing, providing sanitation and hygiene options for employees, and ensuring that the work areas are clean and disinfected.
These federal and state guidelines recommend the following steps:
- If an employee shows signs of COVID-19 (fever, cough or trouble breathing): Place them in a private room away from others. Ask them to wear a face mask if possible. Notify the local health department, and seek further advice on what to do.
- If an employee tests positive for COVID-19: Keep the employee’s identity confidential. This is required by the Americans with Disabilities Act (ADA) and related state laws. Inform close contacts of the sick employee that they may have been close to someone diagnosed with COVID-19.
- Maintain social distancing: Keep six feet of distance between employees. Avoid meetings, but to the extent necessary, make sure meetings are in a large room and that employees maintain six feet of distance.
- Tell sick employees to stay home: Sick employees should be told to stay home. Maintaining flexibility in use of sick leave and paid time off is advisable.
- Encourage good hygiene habits: Employees should be encouraged to maintain good hygiene. The Washington Department of Health Guidelines include helpful posters that can be utilized to display information about proper handwashing, how to cough and sneeze properly, and staying home when sick. Supplies such as hand sanitizer and tissues should be made available.
- Clean high touch areas often: High touch areas like handrails and doorknobs should be cleaned frequently. It’s important to ensure all work areas be cleaned on a regular basis, as well.
- Develop a Safe Workplace Plan Tailored to Your Workplace. Washington’s Department of Labor and Industries recently issued guidance setting forth general requirements and prevention ideas for workplaces, providing more resources for employers to consider when bringing employees back to work. Some factors to consider include sources of possible exposure both inside and outside the workplace, controls to reduce exposure among employees, and unexpected absenteeism and the increased need for leave.
- Allow Teleworking Employees to Choose When to Return to the Worksite, if Feasible. If employees have been able to successfully work remotely, it is a good idea to allow employees to self-select if they want to return, if feasible for your business. A best practice would be to communicate to your employees that the office or place of work will reopen, outline precautions that are being taken to maintain a safe work environment, and advise teleworking employees that returning to work or continuing to work remotely is their choice at this point. You should remind them that this will change in the future, but you will provide advance notice when they are expected to return to the worksite.
- Consider Self-Screening for Those Returning. Employers can use screening mechanisms for those employees who are returning to the worksite. For example, employers can ask employees to complete a self-certification on a daily basis before entering the facility. The self-certification would require employees to certify that they are symptom-free and ready and able to work. This has the added benefit of creating a work culture where employees do not come to work if they are sick.
- Consider Testing for Those Returning. According to EEOC Guidance, during the current pandemic, employers may measure employees’ body temperature before allowing them to return to the worksite, as summarized in Lane Powell’s recent Legal Update. Each business will need to decide whether such tests are necessary or feasible. Additionally, businesses should regularly consult CDC Covid-19 Symptoms Guidance as well as the “Return to Work” guidance provided by the EEOC. Among other things, the EEOC guidance notes that the ADA permits employers to make disability-related inquiries and conduct medical exams if job-related and consistent with business necessity, and that taking temperatures and requiring self-reporting are both practices consistent with what is permissible under the ADA during the pandemic.
- Consider Masks. The EEOC recently released guidance stating that employers can require employees to wear masks in the workplace. CDC guidance currently recommends that individuals wear cloth face masks in public and where social distancing measures are difficult to maintain. Employers should consider requiring employees at the workplace to wear masks in areas where social distancing is difficult, such as when walking down a hallway. Generally, if employees are required to wear some kind of protective equipment in the workplace, the employer needs to provide it. At this point, with masks remaining in short supply, employers might encourage, but not require, employees to wear masks.
- Be Aware of High-Risk Employees in Washington State. Governor Inslee issued a proclamation requiring Washington employers to take steps to protect “high-risk employees,” as Lane Powell previously advised in this Legal Update. The bottom line: employers should not prohibit high-risk employees from coming to work or seek to identify which employees might be high-risk. On the other hand, when a high-risk employee self-identifies and seeks an accommodation, Washington employers must consider suitable alternative work arrangements, such as teleworking, if feasible.
- Don’t Forget About State and Local Leave Requirements. Employees working in Washington or the City of Seattle must also be allowed to use available paid sick leave for reasons relating to COVID-19, as Lane Powell discussed in previous Legal Updates here and here. Keep in mind that employees are entitled to elect whether to use this leave.
- Comply with Families First Coronavirus Response Act Leave Laws. Certain employers, generally those with fewer than 500 employees, are also required to provide employees with paid sick leave and paid family leave available under the federal law known as the Families First Coronavirus Response Act (FFCRA), as Lane Powell explained in this Legal Update. This need may be particularly acute for parents who are ready to return to work but face child care problems because they have school-aged children whose schools or places of care are closed. The law requires up to two weeks of paid sick leave under six scenarios, each of which is discussed below.
- An employee is permitted paid sick leave when the employee is subject to a federal, state or local quarantine or isolation order related to COVID-19.
- An employee is permitted paid sick leave when they have been advised by a health care provider to self-quarantine related to COVID-19. An employee may be advised by a health care provider to self-quarantine based on a belief that (a) the employee has COVID-19; (b) the employee may have COVID-19; or (c) the employee is particularly vulnerable to COVID-19. This period of self-quarantine leave may be as much as 10 days, following the CDC’s recent guidance increasing the recommended period of home isolation from seven to 10 days.
- An employee may take paid sick leave if the employee is experiencing any of the following symptoms: (i) fever; (ii) dry cough; (iii) shortness of breath; or (iv) any other COVID-19 symptoms identified by the CDC and is seeking a medical diagnosis for COVID-19. Any paid sick leave taken for this reason is limited to the time the employee is unable to work because the employee is taking affirmative steps to obtain a medical diagnosis, such as making, waiting for, or attending an appointment for a test for COVID-19.
- Employees are also eligible for paid sick leave if the employee is caring for an individual who is subject to a quarantine or isolation order related to COVID-19, or caring for an individual who has been advised by a health care provider to self-quarantine due to COVID-19 concerns. An “individual” means an employee’s immediate family member, a person who regularly resides in the employee’s home, or a similar person with whom the employee has a relationship that creates an expectation that the employee would care for the person if he or she were quarantined or self-quarantined.
- When the employee is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19, the employee is eligible for paid sick leave. Employees are also eligible for paid family and medical leave for the same reason. Thus, an employee who needs leave to care for their child whose school or place of care is closed, or whose child care provider is unavailable, due to COVID-19 related reasons may be eligible to take leave under both paid sick leave and paid family leave. An employee may take up to 12 weeks of paid family leave under these circumstances, and the first two weeks may be paid as sick leave, and the subsequent weeks paid as family leave.
- And finally, an employee is eligible for paid sick leave if the employee is experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.
The U.S. Department of Labor’s website provides further guidance. Sick leave under the FFCRA will remain available to employees until December 31. Importantly, the sick leave benefits and the paid family leave are capped at different rates depending on the qualifying reason for the leave. Private employers are entitled to refundable tax credits for the FFRCA benefits paid out to employees. For more information on the FFCRA caps and tax credits, please consult Lane Powell’s COVID-19 Resource Center.
While returning to work may be much-anticipated for both employers and employees, it is critical to develop a plan tailored to your workplace, taking into account the needs of your employees and the various health guidelines that remain in place as economic reopening occurs.
Determining how best to meet your business needs during these uncertain times can be challenging. Lane Powell’s team of attorneys are here to help you develop and implement the strategy that supports your business and your employees.
For more information, consult Lane Powell’s COVID-19 Resource Center or contact Hannah Ard, Katheryn Bradley or Mike Kitson. |
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