The Law At Work: Considerations For A Post-COVID-19 World

June 2020 IssueToolbox Articles

As I write this article on the eve of Memorial Day Weekend, the Commonwealth is at the beginning of “Phase 1” of the governor’s four-phase reopening plan, which was announced May 18.  The governor’s complete reopening report states plainly, “Until a treatment or vaccine for COVID-19 is available, life will not return to normal.”  Without question, this summer will be without precedent for businesses across the Commonwealth.  

Below are some resources and basic information to keep in mind for businesses as they reopen over the coming weeks and months, as well as few emerging questions.  As businesses endeavor to reopen safely, here are a couple of issues to consider.

Where do I find trustworthy resources for reopening and operating my business safely?

Between 24-hour news coverage and unlimited social media, the amount of available information about COVID-19 can feel overwhelming and not always reliable.  

The Commonwealth’s dedicated reopening website (www.mass.gov/reopening) is packed with information about safety and compliance requirements, as well as details about each of the four phases.  The Attorney General’s Office (www.mass.gov/ago) also contains particular resources for both employees and small businesses.  The Massachusetts Department of Unemployment Assistance (www.mass.gov/dua) has posted a guide titled, “Unemployment Insurance Benefits and Returning to Work: Guide for Employers,” which provides helpful guidance on emerging issues such as employees’ refusal to return to work, how to communicate with employees about return to work, and the impact of part-time return-to-work on unemployment benefits.

On a federal level, businesses should monitor the website of the Centers for Disease Control (CDC) (www.cdc.gov) for updated public health guidance.  For those businesses who received a Paycheck Protection Program (PPP) loan through the Small Business Administration, guidance has been regularly updated on the website (www.sba.gov/ppp).  Moreover, the PPP loan forgiveness application was posted on May 15, 2020.

Business owners should also monitor guidance from their local city/town governments, which could be stricter than the Commonwealth’s guidance.  For example, while office workplaces were permitted to reopen at 25 percent capacity as of May 25 statewide, the City of Boston pushed this reopening back to June 1.

Is there anything specific that businesses need to do to reopen to comply with the law?

Yes.  Per the state’s reopening guidelines, all businesses must “self-certify” that they are in compliance with mandatory safety standards before reopening.  The Commonwealth has provided a COVID-19 “Control Plan Template” that should be used as a guide for businesses to develop a written control plan outlining how they will comply with the new safety standards.   These standards include, but are not limited to:

  • Requiring face coverings for employees;
  • Establishing social distancing protocols;
  • Providing adequate hand-washing capabilities for employees;
  • Implementing protocols for how to manage employees with COVID-19 and their return to work; and
  • Ensuring adequate cleaning protocols specific for the business.

Most of these compliance requirements mirror the instructions we have all been given over the past few months by public officials, and likely align with many of the protocols that owners and managers have planned to utilize in a post-COVID world.  However, the implementation of these policies will require thoughtful planning and consideration.  These protocols will be unique to each company depending on factors such as the nature of the business, its location, and its staff size.  

The self-certification process means that there is no requirement that the COVID-19 Control Plan be submitted to any authority for approval.  However, the completed plan must be kept on the premises.  If there is an inspection or an outbreak of COVID-19, the plan will have to be produced.

The Commonwealth also prepared several posters that are mandatory for workplaces.  Those should be downloaded and printed directly from www.mass.gov/reopening

On the federal level, the Families First Coronavirus Response Act, which went into effect on April 1, 2020 and mandates paid leave for certain eligible employees, also has posting requirements for employers.  That poster can be downloaded from the Department of Labor’s website (https://www.dol.gov/agencies/whd/posters). 

How should I respond to employees who do not want to return to work because they are fearful?

First and foremost, these issues are new to everyone.  As a general practice, employers would be wise to cultivate open communication and transparency among employees and managers about how their businesses can function both safely and effectively in our “new normal.” All sides should think creatively and be flexible.

That said, employers have the final say on whether employees are able to perform their work remotely, or whether the work performed is of such a nature and character that the employee must perform some or all of their work at the workplace.  If an employee simply refuses to return to work out of fear, an employer does not have a legal obligation to accommodate that employee’s fear by, for example, permitting the employee to remain on leave or work from home indefinitely.  

These situations can become complicated where employees have legitimate, underlying medical conditions, such as diabetes or asthma, that put them at higher risk for COVID-19 complications.  If the employee articulates specific medical conditions that he or she believes prevent a return to work, the employer may need to engage in the interactive process, as required under the Americans with Disabilities Act (“ADA”), to determine whether the employer must provide a reasonable accommodation.  Managing the interactive process can be complex and challenging under normal circumstances, and may be made further complicated by the overlay of COVID-19.  Consulting experienced counsel to guide you through the process can be very helpful to mitigate risk.

I understand that I can take employees’ temperatures and perform health screenings.  What are the best practices around that?

Under normal circumstances, taking an employee’s temperature would be considered a medical examination, which are only permissible in certain circumstances under the ADA.  However, in light of COVID-19, the EEOC recently updated its guidance entitled, “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act” (www.eeoc.gov/coronavirus), to allow for temperature taking.

As such, employers are now permitted to take employees’ temperatures (or request that employees take their own temperatures) to determine whether they have a fever.  They may also screen for typical COVID-19 symptoms, such as chills, cough and shortness of breath.  Procedures around employee medical screenings will vary based on the nature of the business and the size of the staff.  Generally, employers should consider employee privacy and safety protocols for any individual who is performing the screenings.  Importantly, any medical information collected by employers should be stored separate and apart from the employees’ personnel files.  

Adjusting to our ‘new normal’

The world has changed dramatically in the last few months, and myriad challenges still lie ahead.  Many businesses have suffered immensely, parents struggle with the absence of daycare and in-person classrooms, and families have lost loved ones to COVID-19.  

As grim as these months have been, though, I have been equally amazed at our collective resilience and ingenuity.  Parades of honking cars celebrate our children’s birthdays, we cover our faces before we go into the grocery store, and friends socialize with each other among expansive arrangements of lawn chairs set six feet apart.  Three months ago, these rituals would have seemed unimaginable, but we have adjusted.

Businesses and their employees have also adapted remarkably, despite the shifting sands.  We will need to continue to be tough, imaginative and adaptable as we face this new normal together.

Kathleen R. O’Toole is an associate at Conn Cavanaugh, a Boston law firm that represents individuals and organizations ranging from closely held and family businesses to Fortune 100 companies. She can be reached at KOtoole@connkavanaugh.com

 

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