Partner Aaron Tandy and Julie Dick senior counsel, Pathman Lewis in Miami (Photo: Courtesy Photo)

Even after "stay-at-home" orders are lifted, COVID-19 will have a lasting effect on workplaces in terms of health precautions, hygienic cleaning and work mobility, among other things. Employers need to start planning now for changing employee expectations regarding teleworking and the need for policies to protect worker safety at the workplace.

Onboarding laid-off, furloughed or recalled employees exposes employers to potential Americans with Disabilities Act (ADA) and discrimination claims, or enforcement actions, if carried out incorrectly or thoughtlessly. Employers can look to the Department of Labor (DOL), Occupational Safety and Health Administration (OSHA) and Centers for Disease Control and Prevention (CDC) guidance alongside state and local rules to frame some parts of new policies and practices for maintaining a safe workplace that will be required "post-lockdown."

Have a Plan to Provide a Safe Workplace

Employers have a general obligation to provide a safe workplace under federal and state guidelines. Moreover, state and municipal rules may govern specific activity carried out at given work sites.

OSHA guidance recommends developing an infectious disease preparedness and response plan, and implementing infection prevention measures in the workplace. This includes assessing the level of risk, mitigating the risk and responding to it. The plan should consider worker exposure to COVID-19 in the workplace, in the community, at home, and for vulnerable populations. Implementation of infection prevention measures may include taking temperatures of employees at each shift start; discouraging workers from using other worker's equipment; adjusting shifts and worker distribution to reduce exposure; and extra attention to cleaning practices.

It is important to ensure that cleaning products are EPA-approved for viral pathogens and used following directions and labels. Unsafe use of cleaning products is on the rise and improper use of cleaning agents can lead to dangerous chemical exposures, workers' compensation claims and OSHA violations.

New guidance recommends policies for isolating sick people and evaluating when to allow some employees to work from home. Employers can make use of the classification by level of risk that OSHA has provided in implementing a combination of engineered controls (social distancing, isolated workspaces), administrative controls (limitation on hours or use of remote access platforms for team projects) and personal protective equipment (most likely supplied by employers) for certain occupations and as appropriate for job tasks.

Reasonable Accommodations

Coronavirus response legislation essentially created a new protected class under the ADA. Vulnerable employees include the elderly and those with underlying health conditions. It is likely that as operations transition back to the workplace, there may be a surge in reasonable accommodations requests from employees seeking to work from home or otherwise protect themselves from the virus. It is important to treat these requests with the same seriousness as any other ADA accommodation request.

At the same time, an employer may face a discrimination charge if it assumes that a vulnerable employee does not want to come back. It is up to the employee to ask for an accommodation and therefore trigger the commencement of an interactive dialogue (including an employer request for supporting documentation); a determination regarding whether an accommodation is reasonable and effective; and ultimately providing and monitoring the accommodation once provided.

Avoiding Discrimination Claims

New workers safety guidance, sick leave and work-from-home policies do not prevent employers from complying with DOL guidance and rules. As layoffs and furloughs continue and as furloughed employees are brought back on board and others are rehired, anti-discrimination laws apply.

In determining who to bring back or allow to continue working from home, it is important to document processes in place that establish a legitimate business purpose for decisions.  Watch for situations where a protected class of employee may be seemingly singled out in decisions.  For example, in a workplace where most executives are males and administrative staff is  female, requiring administrative staff to return to the physical workplace location while allowing executives to continue to telecommute may create the appearance of a pattern of discrimination against women.

Temperature checks and COVID-19 tests are transforming the role of the workplace in managing public health. Many employers are checking employee temperatures at the door or even testing employees for the coronavirus to inform decisions for maintaining a safe workplace. However, the results of such testing are confidential health information and must be treated as such. Employers must take care not to use such information in a manner that would be seen as discriminatory. Utilizing temperature or COVID-19 testing information in making hiring and firing decisions may put an employer at risk for discrimination claims. Establishing a COVID-19 response coordinator or group may also benefit employers to avoid discrimination claims.

Workers' Compensation

States are considering changes in workers' compensation laws with respect to COVID-19. A valid workers' compensation claim must be connected to an occupational risk of employment. Some states have made COVID-19 an occupational risk for health care workers on the front line. Florida extended workers' compensation benefits to "Frontline State Employees" impacted by COVID-19. Employers who fail to implement guidance from OSHA for establishing a safe workplace may expose themselves to workers' compensation liability as the legal landscape on COVID-19-related claims evolves. Moreover, as employees continue to work from home, employers must recognize that those "workspaces" are also covered by their workers' compensation policies and plan accordingly. As part of a preparedness plan, employers should review all of their insurance policies.

Aaron Tandy heads the Pathman Lewis' employment law practice, helping employers and employees navigate complex employment issues. Tandy can be reached at [email protected].

Julie Dick is senior counsel at the firm. She advises clients on environmental and social (ESG) compliance. Contact her at [email protected].