Outside Orrick's San Francisco office on March 17, 2020, a day after the shelter in place order affecting almost 7 million Bay Area residents. (Photo: Jason Doiy/ALM)

Being an employment lawyer during the COVID-19 pandemic has been a 24/7 job filled with emails, calls, client alerts, guidance and policy drafts, webinars, blog updates, podcasts and almost constant refreshing of government regulators' web pages.

Clients' thirst for fast, accurate information in a time of immense change and uncertainty is unending, those in the practice report.

"Sometimes we're literally reading the new regs as they're coming out," said Sue Stott, a partner in Perkins Coie's labor and employment law practice in San Francisco.

The Recorder talked to three employment law experts to find out what companies are asking as they prepare to reopen their doors after months of physical closures. Many employers' questions have been industry- or location-specific. Is it safe for my workers to travel? How do I handle disruptions in my supply chain? What should our policy on masks be?

There were some common themes among the questions, however. Here are a few the lawyers mentioned.

What is everybody else doing?

Company leaders have a lot of questions about when—or whether—competitors or others in the industry are reopening.

The answer, lawyers say, often depends on where that company is located, whether they've been deemed "essential" and whether employees are getting the work done at home.

"In Texas, for example, we've already helped some clients return to the workplace this week," said Julie Totten, leader of Orrick, Herrington & Sutcliffe's employment law and litigation practice group. "In California, offices in different cities are each handling that differently."

That information isn't always easily available, with people working out of the office and the constant churn of changes.

"There were weeks where it seemed every day we were advising on working from home, furloughs and finally, layoffs," Stott said.

How do we prepare the workplace for employees to return?

"We're talking a lot about workplace redesign—physical plant issues, using directional signage so people are not crossing each other's paths in hallways, where to stand and where to go. Ventilation is another issue, as is cleaning and sanitizing," said Kate Gold, a partner in Proskauer Rose's labor and employment law department in Los Angeles.

Of course, answering that question also requires a handle on ever-changing rules and guidance from the Centers for Disease Control and Prevention, the Occupational Safety and Health Administration, labor regulators and state and local health officials. And lawyers have to advise clients on the difference between orders and recommendations.

California, for instance, has five "must dos" for facilities looking to reopen: create a site-specific protection plan; train employees on COVID-19 safety; implement control measures and screenings; create disinfection protocols; and set physical distancing guidelines.

"We recommend that [clients] follow the most restrictive rules and guidance," Totten said.

Can we scan employees' temperatures? Can we track and trace our workers' exposure to COVID-19?

The U.S. Equal Employment Opportunity Commission allows employers to take workers' temperatures during the COVID-19 pandemic. But "it's not as logistically simple as you may think," Gold said.

Employers have to be careful to limit who collects and sees employees' health information, lawyers said. Apps add a new dimension of privacy concerns. Then there's the issue of tracking the contacts of workers who show symptoms or test positive for COVID-19.

Voluntary contact tracing is probably OK, Totten said, but mandatory tracking needs a much closer legal examination that implicates the American with Disabilities Act, the Health Insurance Portability and Accountability Act and the California Consumer Privacy Act.

"You really need to understand what is happening with that data," Totten said. "We think the employer should probably not be the direct recipient of that data."

Stott agreed that employer-based track-and-tracing "is a brave new world."

"It should be done by professionals," she said. "The professionals, at least the ones we've seen, are government agencies that might engage professional consultants. But it's probably not something companies should engage in on their own."