On April 16, President Trump announced “Opening Up America Again” guidance, which provides discretion to state governors and local officials to make individual determinations about relaxing shelter-in-place and non-essential business closure orders. Some states immediately began to announce their plans for reopening businesses. For example, South Carolina has already allowed some stores to reopen, Texas announced plans to start reopening businesses on April 27, and other states, including Georgia and Florida, are set to announce similar plans. 

The Centers for Disease Control and Prevention just released guidance to assist employers in making decisions regarding reopening their workplaces. According to the agency, “(t)he purpose of this tool is to assist business owners and managers in making decisions regarding reopening during the COVID-19 pandemic. It is important to check with state and local health departments and other partners to determine the most appropriate actions.”

In addition to the guidance issued by the CDC, employers must consider the following health and safety workplace issues as jurisdictions start lifting COVID-19 restrictions:

  • Complying with all federal, state, and local COVID-19 directives, as well as any industry-specific requirements.
  • Developing social distancing plans or refining and updating existing plans, such as modifying the physical workplace, limiting in-person interactions and physical contact, training employees on social distancing policies and protocols, and reducing the number of employees present at the workplace.
  • Implementing regular screening protocols, such as temperature testing, in compliance with state and federal laws.
  • Requiring employees to wear personal protective equipment (“PPE”).
  • Cleaning and disinfecting office spaces and equipment.
  • Developing a safety communication plan that explains safety protocols, policies, and procedures related to COVID-19.
  • Implementing protocols for tracking and reporting COVID-19 tests, including whether to conduct such tests.

Employers need to be aware that the COVID-19 pandemic and its fallout will likely spur an avalanche of labor- and employment-related claims and litigation, including the following:

  • Workers’ compensation claims and related serious and willful misconduct claims.
  • Claims based on violations of the Families First Coronavirus Response Act (one recent lawsuit filed in federal court, Stephanie Jones v. Eastern Airlines, involves both interference and retaliation claims under the statute).
  • Claims based on violations of the Family Medical Leave Act and the California Family Rights Act.
  • Common law and statutory discrimination, harassment, and retaliation claims based on ethnicity and national origin. (The FBI has reported that Chinese- and other Asian-Americans are experiencing increased hate crimes due to the pandemic, and there are many reports that workplace discrimination and harassment have increased as well.)
  • Claims based on violations of the general duty clause of the Occupational Safety and Health Act. (The general duty clause requires that each employer furnish to each of its employees a workplace that is free from recognized hazards that are causing or likely to cause death or serious physical harm.)
  • Invasion of privacy claims (i.e., an employer disclosing the name of an employee who is infected with COVID-19).

Employers should consider the following best practices to minimize COVID-19-related labor and employment litigation and help them defend against any such litigation:

  • Complying with all current guidelines from the leading health authorities to keep the workplace as safe and healthy as possible for their employees. These guidelines include those from the Centers for Disease Control and Prevention, the federal Occupational Safety and Health Administration, the State of California Department of Industrial Relations – Division of Occupational Safety and Health, and the World Health Organization.
  • Designating someone in the organization who is an “expert” with respect to the various labor and employment law issues, as this will help to ensure that every situation is dealt with consistently and that proper review has been conducted.
  • Carefully reviewing existing insurance policies to see if they have employment practices liability insurance (“EPLI”), and if they do not have it, considering purchasing such insurance now.
  • Making sure that their employees are complying with existing anti-discrimination, anti-retaliation, and anti-harassment policies, and enforcing such policies consistently.
  • Considering sending a written memo to all employees stating that blaming or harassing any ethnic or national origin group due to COVID-19 violates their workplace policies and could be grounds for disciplinary action, up to and including termination.
  • Considering conducting appropriate training of employees regarding their COVID-19 related policies, benefits, procedures, and processes so that employees know what is expected of them and what they can expect from their employers.
  • Conducting a comprehensive review of existing policies that will be impacted by the lifting of workplace restrictions and concurrent state and local COVID-19 directives, such as leaves of absence, furlough, benefits, wage and hour issues, and compensation issues, and establishing leave administration and accommodation guidelines.

Not only will employers need to consider the above issues, they will likely encounter greater employee demand for flexible hours, telework arrangements, and generous paid sick leave as part of the new normal. Indeed, when employees return to the workplace, many of them will have shifted priorities after a long stretch of telework and sheltering in place with their families – there is going to be a significant amount of questioning around where to work, how to work, and the hours of working. Employers need to be prepared to address all of these issues, including creating new and appropriate HR policies and procedures. 

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