Back to Work? Beware.
“We’re in uncharted waters, akinto those bits on a medieval map wherethe cartographers had no clue andwrote: ‘Here be Dragons.’” — Rick Jones, Crunched Credit (April 19, 2020)
By the time you are reading this, many of us will be nearing a full three months under government-mandated sheltering-in-place edicts. While many in our industry have continued to work under the Department of Homeland Security’s “essential critical infrastructure workforce” framework, a broad swath of Council member firms and your clients have adopted extensive telecommuting policies and procedures in an effort to comply with these stay-at-home orders to the extent feasible. Others have not had that luxury. Manufacturers, hotels, restaurants and brick-and-mortar retailers, to name a few, generally cannot do what they do in a remote work environment.
States now are in the midst of rolling back their stay-at-home mandates. The Council recently hosted a webinar led by two of my Steptoe partners who specialize in labor and employment law—Steve Wheeless, Steptoe partner and chair of Steptoe’s Labor and Employment practice group, and Beth Call, Steptoe partner. As we developed the presentation, we focused on the natural organizing questions:
- When should you reopen?
- Whom should you bring back?
- How should you reopen?
Adding, of course, the critical insurance questions overlay.
But the more we discussed the essential issues and the choices that businesses—yours, your clients’ and my own law firm—will need to make to get reopened, it became clear to me that the critical threshold question really is whether to reopen at all. Developments in the workers compensation coverage space really bring that issue to the fore. California Governor Gavin Newsom recently signed an executive order that establishes a presumption that anyone who contracts COVID-19 will be presumed for workers compensation insurance purposes to have contracted the illness at work unless being in the workplace was not compulsory.
Although the presumption is rebuttable, it is unclear how you would actually be able to prove that negative to overcome the presumption. Especially for self-insured employers, the addition of this economic liability could be enough to persuade them to delay reopening to avoid the exposure. One Council member did point out to me that, although the executive order purports to apply to all businesses, a statewide quarantine-in-place order remains. As a practical matter, the EO therefore applies only to “essential” businesses for now, but many businesses that fought so hard to slot in under that “essential” business exception may now be reconsidering their view on this.
They also may be reconsidering the extent to which their current work can be performed at home on a teleworking basis. Importantly, Governor Newsom’s EO does not apply to those who are working from home or are permitted to work at home if they so choose.
When? For businesses that are evaluating when to reopen, applicable state and local rules and requirements are of course the first step. Beyond that, though, no business has to take a one-size-fits-all mantra; as long as the decisions are focused on the departments that you need to have in the business facility versus the job functions that can be effective from home, you are free to tailor your come-back-to-work plan accordingly. And you also can stage the return using the same principled approach.
Who? With respect to whom you bring back, the rules at some level are basic—you cannot choose based on your view of who is at risk and who is not. You can and should do some level of screening to keep those who have tested positive for COVID-19 or who are symptomatic from entering the workplace. And you need to have policies and procedures in place to accommodate anyone who makes a claim that they are legitimately at risk or who has a family member who is suffering with the illness for whom they need to provide care. Failure to properly adhere to these parameters can trigger liability under state and federal employee non-discrimination laws as well as the Americans with Disabilities Act, the Family Medical Leave Act and/or other state and federal employee protection regimes.
How? The manner in which you maintain your workplace to minimize the potential for COVID-19 exposure currently is the subject of a vast array of guidance and opinion. Employers are expected to widely deploy personal certifications, temperature screening and COVID-19 diagnostic tests. The Centers for Disease Control and the Equal Employment Opportunity Commission both endorse the use of such protocols. If someone tests positive or is symptomatic, they need to be sent home, and employees who may have been exposed need to be informed of that potential exposure (without identifying the infected employee).
OSHA, the CDC and many of the state back-to-work orders also outline physical distancing and other physical space measures (high-efficiency air filters and the deployment of physical barriers), use of personal protective equipment (gloves, goggles, face shields, face masks, etc.), and basic infection prevention measures (promoting handwashing; providing hand sanitizer; routine cleaning and disinfecting of surfaces) that can and should be evaluated to determine the extent to which each of these measures may be appropriate and/or legally required for your workplace.
The key to a successful back-to-work strategy is good communication both among the team you put in place to manage the transition back and with everyone who will be impacted one way or the other by the plan you put into place.
Some office-based businesses are evaluating bringing people back but having individual employees essentially isolate in place in the office—six-foot zones of privacy around each work station and in-office Zoom meetings. That brings me full circle: if those are the measures you are going to take, why bring those individuals back into the workplace at all?
We are in uncharted waters. The trial bar already has begun filing lawsuits—to date, over 700 and counting—challenging every conceivable decision businesses are making in an effort to try to stay in business. There are dragons everywhere. Beware.