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How will employers reopen in our COVID-19 new normal?

At great economic cost, our country locked down to slow the spread of COVID-19. After closing nonessential businesses and places of gathering as well as mandating social distancing and increasing testing, some states have determined to loosen a number of their lockdown procedures to increase social interactions and help to restart their economies. Although Illinois Gov. J.B. Pritzker has extended his stay-at-home order for Illinois through May 30, 2020, he has allowed some businesses, like garden centers and nurseries, to reopen, and is reopening some parks on May 1. (This order is currently subject to two court challenges.) Our focus now is turning to how we in Illinois may safely return to our workplaces in this COVID-19 new "abnormal."

Distilling federal, state and local guidance, which continues to develop and change, and considering industry practices, we have identified some issues and processes employers might consider when implementing their reopenings.

  1. Employers should avoid paternalistic business decisions. COVID-19 has been found to be particularly dangerous for employees who are older, have certain conditions (e.g., asthma, high blood pressure, diabetes and obesity) and those who are immune compromised, including those receiving cancer treatments. Employers are encouraged to continue to offer special accommodations to employees who fall within these cohorts and to pregnant employees, including extending leaves and encouraging them, when possible, to work remotely. However, when returning their employees to work, employers should not let the age of their employees or their own thoughts concerning the vulnerability of their employees’ health dictate their return-to-work decisions. Decisions motivated by those factors could put an employer in violation of the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Pregnancy Discrimination Act and/or the Illinois Human Rights Act. The Equal Employment Opportunity Commission (EEOC) has issued guidance on accommodations, which it is updating regularly. It encourages employers to refer to the Job Accommodation Network (JAN) website for possible accommodations. Recently, the EEOC has suggested that employers might offer temporary accommodations or simply grant requests for accommodations without engaging in a full interactive accommodation review with their employees, while still strongly encouraging employers to follow up with full interactive accommodation reviews as time permits.

    As the stay-at-home orders are relaxed, there will be increased social interaction. Because there is no vaccine (yet) or cure for COVID-19, there will be more infections. Infected employees or employees whose family members are infected may need leave. The Families First Coronavirus Relief Act (FFCRA) provides for up to 80 hours of paid sick leave for employees impacted by COVID-19 and, for employees dealing with child care issues because of the virus, up to 10 weeks of paid family and medical leave. These federal protections will continue through Dec. 31, 2020. Infected employees or those caring for family members with COVID-19 may be eligible for traditional family and medical leave.

  2. Employers should take care not to retaliate against their employees if they request paid sick leave or paid family leave under the FFCRA. The U.S. Department of Labor has indicated that it will be enforcing the paid leave requirements.
  3. Employers should stay updated and follow all federal, state and local guidelines and regulations promulgated to protect the safety of workplaces and their workforces.

  • Employers should continue to encourage remote work, whenever possible, and to limit non-essential business travel.

  • Employers may take temperature checks (should be noncontact) and ask COVID-19 screening questions of their employees and other visitors. Information gathered from employees should be maintained confidentially and not be included in the employee’s personnel file. Employers are encouraged to post this information outside their workplace to inform those entering that screenings will be performed.

  • Employers also may choose to administer COVID-19 testing because an employee with the virus poses a direct threat to the health of others.

  • Effective May 1, 2020, Illinois employers should require their employees to wear face coverings.

  • Employers should remind their employees of and reinforce good hygiene practices: handwashing, coughing into their elbows or a tissue, and not touching their faces.

  • Whenever possible, employers should require social distancing in the workplace.

  • Employers also are encouraged to stagger start times, end times and breaks as well as close, limit access to, or restrict numbers in common areas to limit social interactions.

  • Employers may wish to redesign their work environments to spread out their workplaces, including considering using one-way aisles, adding barriers or screens to reinforce distancing, and providing cleaning and disinfecting wipes.

  • Further, employers must clean and disinfect commonly used spaces and items, including shared tools. An infection following a general failure to comply with government direction could lead to an Occupational Safety and Health Administration (OSHA) reportable incident or cause the employer to lose the exclusive protections of workers’ compensation statutes.

  1. Employers should encourage employee communication. They should not prohibit their employees from sharing their concerns because that could violate the concerted action protections provided by the National Labor Relations Act. 

  2. To comply with OSHA, employers should establish written safety plans and develop tracing protocols.  If an employer learns that an employee is infected, that employee must be sent home. The employer’s cleaning, disinfecting and tracing protocols should be activated. The employer should identify all areas in which the infected employee worked, was present in the workplace, and all individuals with which the infected employee had contact in the prior 14-day period. The area in which the infected employee worked must be thoroughly cleaned and disinfected. All employees that worked in close proximity to the infected employee should be notified and encouraged to both self-monitor their symptoms and be tested.
  3. If employees are returning from furlough after less than a 13-week absence during which they were not participating in the employer’s health plan, the employer should immediately reinstate them to the plan in accord with the Affordable Care Act.

  4. Employers are encouraged to take this time to update their employment policies and make sure to post all required notices. Employers also should update their plan documents and summary plan descriptions to reflect changes from the Coronavirus Aid, Relief, and Employment Security Act that allow for reimbursement of over-the-counter drugs and menstrual care products, effective Jan. 1, 2020. Employers may also wish to review and update their leave and remote work policies and provide training to supervisors on managing remote workers.

  5. This would be an excellent time to encourage cross-training of employees. Healthy employees and employees not impacted by COVID-19 may need to assume more job duties and responsibilities. Cross-training will help these employees weather their colleagues’ absences.

  6. Take care to avoid whistleblower claims. If an employee is too afraid to return to work, the concern should be taken seriously. An employer might consider allowing that employee to take further available leave, such as paid time off or unpaid leave, rather than forcing the employee to return or firing the employee if they refuse to return. There could be liability for an employer where the employee reasonably believes that the employer is not providing enough protections for their employees’ public health.

  7. Employers should take care to prohibit discriminatory and harassing conduct in the workplace based on any protected class, including national origin.

  8. Finally, employers are encouraged to think about their futures and be mindful of their reputations. How did you respond to the virus? What worked? What could be changed in the future? How did your contingency and succession plans respond? Did you look out for your employees? Did you act with empathy? Were you humane? People have long memories and will remember how you made them feel long after they remember how you acted.

Although work life may never return to pre-COVID-19 conditions, businesses will reopen and people eventually will return to work as restrictions ease. Until there is a cure or vaccine to COVID-19, we face a new normal with a continuation of social distancing to prevent infections.

If you have questions about how to best to return your employees to the workforce and what you should or could be doing to prevent the spread of the virus within your business, contact one of Chuhak & Tecson’s Employment law attorneys who will work with you to understand your work situations and address your concerns.

Client alert authored by Jeralyn H. Baran (312 855 4613), Principal and Employment practice group leader.

This Chuhak & Tecson, P.C. communication is intended only to provide information regarding developments in the law and information of general interest. It is not intended to constitute advice regarding legal problems and should not be relied upon as such.

Chuhak & Tecson's attorneys, paralegals and staff remain committed to staying at the forefront of changes in the law and contributing to the success of our clients and colleagues.

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