Considerations and Practicalities for Returning Employees to Work During a Pandemic

Uncertainty surrounding when employers might return employees to work has given way to uncertainty about how to do so. Employers who are considering reopening in the coming weeks will be faced with a dramatically different workplace and a worried workforce. As employers work through the ongoing issues presented by COVID-19, flexibility and responsiveness to issues ranging from the configuration of the workplace and location(s) of workers to employee leave requests as well as evolving health and safety standards will be crucial.

Once shelter-in-place orders have been lifted and employers are permitted to reopen their workspaces, they will need to do so with caution. There will be local, state and federal orders and guidance to consider. Wading through the patchwork of requirements and understanding what guidance or recommendations are mandatory is the first step in preparing a return-to-work plan.

Businesses Will Likely Need to Take a Phased Approach to Reopening

Federal guidance from the White House suggests that businesses should be opened in phases depending on their ability to adhere to guidelines aimed at limiting the potential for transmission of COVID-19 between employees or customers. State and local governments are also beginning to issue orders allowing for the phased reopening of businesses with specific health and safety protocols. Once businesses are permitted to reopen by their state and local government, employers may find it necessary (based upon government guidance or otherwise) to open their individual business in phases by staggering the timeline for returning employees to work. To the extent that employers implement a phased return to work, they should consider which positions will be most essential for the business and identify ways to train employees in these areas, if employees who are available lack the necessary experience and expertise.

Employers Should Be Thoughtful When Returning to Work Furloughed or Separated Employees

In industries where the workforce has been largely subject to furlough and layoff and employers are considering a staggered return-to-work schedule for their employees, employers should consider the impact that partial work may have on employee eligibility for unemployment insurance and the enhanced relief under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). There may be certain scenarios where the employee may benefit more financially by remaining out of work in the short term rather than returning to work on a part-time basis and potentially becoming ineligible for federal supplemental unemployment benefits. Each state has its own weekly income threshold, and thus this will be a highly individualized analysis.

In addition to considering financial implications for employees, if a business has successfully obtained a loan under the federal Paycheck Protection Program (PPP loan), it must be sure to comply the PPP loan use requirements if it plans to obtain forgiveness for the PPP loan as permitted under the CARES Act. For example, 75 percent of the forgiven amount must be used for payroll, and the loan forgiveness may be reduced if the borrower does not maintain or quickly restore staffing and employee salary levels (for salaries that are less than $100,000 annualized and have been reduced by more than 25 percent).

Employers also should establish and follow a procedure for returning employees who have been formally separated from employment (as opposed to being placed on a paid or unpaid furlough). Such employees may need to be re-enrolled in insurance plans and asked to re-sign any applicable employee handbook acknowledgements or agreements (such as restrictive covenant or arbitration agreements).

Employers Will Need Different Policies for High-Risk Employees

Employers will need to pay special attention to employees who are considered at "high risk" of developing severe symptoms if they contract COVID-19 when determining a return-to-work plan. The Centers for Disease Control and Prevention (CDC) has stated that "older adults" and people who have "severe underlying chronic medical conditions like heart or lung disease or diabetes" seem to be at higher risk for developing more serious complications from COVID-19. Businesses will need to determine whether such employees should be asked or required to return to the workplace, balancing against potential violations of the Americans with Disabilities Act (ADA) and other anti-discrimination laws. (Holland & Knight will address the unique challenges that COVID-19 presents in the discrimination arena in a later "Return to Work" alert.) In addition to the CDC guidelines, local health officials may have additional guidelines or restrictions for high-risk employees returning to work.

Even if employers are permitted to ask such employees to return to work, they should be thoughtful about addressing and possibly accommodating the concerns that such employees will likely have. Businesses may want to consider using anonymous surveys to gauge employees' concerns and willingness to return to work. Many concerns may be alleviated through the business clearly communicating to employees all of the steps the business is taking to protect them.

What to Do if Employees Refuse to Return to Work

Even when employees are not considered to be at "high risk" for severe symptoms if they contract COVID-19, employers should still anticipate that employees may be reluctant or may even refuse to return to work because of a general fear for their own health or the health of their household members, because they are unable to obtain childcare for minor children or for other reasons related to COVID-19. As discussed above, clearly communicating to employees the steps being taken to protect them may be useful to alleviate anxiety and fear.

Employers with fewer than 500 employees may in certain circumstances be required to provide paid or partially paid leave to employees who are unable to return to work for these specified reasons under the Families First Coronavirus Response Act (FFCRA). This topic has been covered in previous Holland & Knight alerts (see "DOL Issues Initial Guidance and Employee Notice for Families First Coronavirus Response Act," March 25, 2020, and "New Law Requires Employers at Certain Firms Provide Leave, Gives Employer Tax Credits," March 19, 2020).

Employers who have more than 500 employees or who are otherwise exempted from the FFCRA may still be required to provide some medical leave pursuant to their applicable local or state leave laws. They may also be required to provide an accommodation in the form of leave under the Family and Medical Leave Act (without the FFCRA enhancements), the ADA or other state or local law equivalents. Employers should try to develop uniform criteria to consider when evaluating requests for leave to avoid potential claims of unfair treatment or discrimination.

Returning Employees to Work Will Involve Several Logistical Challenges

As employees return to the physical workplace, state and local orders will likely require employers to reconfigure workspaces to allow for necessary social distancing. Businesses located in office buildings must consider things such as how employees can maintain social distancing while taking the elevator upstairs (and how long those elevator lines will be). Larger employers may consider forming "teams" of employees to come into work during alternating days or weeks. This may be more manageable and limit workplace occupancy levels (which may also be required). Another solution may be to revisit the work "week," allowing employees to work three or four days per week and staggering shifts on a daily basis, Monday to Saturday. There will be wage and hour implications for these types of changes, which will be addressed in a later alert in this series.

Employers may also consider limiting or eliminating access to communal areas in the workplace, such as lunch rooms and large conference rooms. If an employer chooses to limit or eliminate access to the lunch room, for example, employers should ensure that they are providing employees alternative options so that employees can still take an uninterrupted meal break and have access to sanitary space to have lunch.

Social Distancing Protocols Must Be Enacted When Returning Employees to Work

As workplaces reopen, the CDC has issued general guidelines and recommendations to be followed in order to mitigate the chances of contracting COVID-19 in the workplace. The CDC guidelines and recommendations include:

Additional strategies for social distancing that businesses should consider include:

• displaying markings or signs reminding customers and employees to maintain social distancing in areas where people congregate (use of "zones," one-way corridors, waiting lines)
• wearing masks/face coverings where social distancing is not possible or unlikely to be effective
• social distancing during shift changes/breaks
• establishing maximum capacities for restrooms
• modifying frequently touched surfaces to make "touchless" (i.e., foot pedals to open doors)
• holding fewer in-person meetings and using increased conference calls or video conferences
• instructing employees not to use other employees' workspaces or equipment
• developing or revising "crowd control" plans to change security processes and procedures (such as setting a maximum number of employees and visitors on company premises at one time)

Mental Health Concerns

As employees return to work, employers will need to keep the mental health of employees in mind. Employers that want to create a smooth transition as employees return to work will need to address the mental health of their employees and take affirmative action. It is recommended that employers consider the following actions to assist employees and address mental health concerns.

• Communicate: Provide transparency to employees regarding the steps taken to protect employees from COVID-19.
• Combat Employee Burnout: Provide additional breaks and days off to employees to deal with stress and concerns related to COVID-19.
• Provide an EAP: Employee assistance plans (EAPs) provide employees with access to mental health professionals who can provide a limited number of counseling sessions and also recommend mental health professionals for continued treatment. Employers who have EAPs should make sure that employees are aware of this resource, and employers without EAPs should consider putting such a program in place.
• Group Health Plan Benefits: In addition to providing coverage for mental health care, many group health plans include behavioral health programs that assist those experiencing difficulties. Telehealth services can also be used to provide faster access to mental health care providers. Employers should make sure that employees understand and are aware of the various mental health benefits and programs available under their group health plans.

Group Health Plan Coverage

Whether a plan is self-insured or fully insured, sponsors and administrators of group health plans will need to adopt changes to ensure that their plans comply with changes made by the FFCRA and the CARES Act and provide sufficient benefits to combat COVID-19. Under the acts, group health plans will have to do the following.

• Cover the full cost without cost-sharing (i.e., deductibles, copayments, or coinsurance) of testing for COVID-19. This requirement extends to tests provided by both in-network and out-of-network providers and is mandated for the duration of the public health emergency. Both swab tests that collect a specimen from an individual's upper respiratory tract to diagnosis a case of COVID-19 and approved blood tests that look for antibodies to the coronavirus must be covered.
• Once developed, group health plans will also be required to provide coverage without any cost-sharing for coronavirus vaccines.
• Under the CARES Act, a high-deductible health plan (HDHP) that provides first-dollar coverage for telehealth services before the deductible has been satisfied will continue to qualify as an HDHP.

To ensure that operations run smoothly and employees who come back to work have needed healthcare coverage, employers must update their plans to provide coverage for testing and vaccines. Employers should also consider amending their HDHPs to provide first-dollar coverage for telehealth services. Employers will need to prepare required amendments and summary of material modifications (SMM) documenting these changes and communicating them to employees.

About This Series

Over the course of this series, Holland & Knight's Labor, Employment and Benefits Group will cover practicalities underlying state reopening orders, on-site employee screening and testing challenges, the establishment of a pandemic response team, the creation and maintenance of a work environment designed to mitigate COVID-19 transmission, establishing and maintaining social distancing protocols, and how to address fears that employees may have about returning to the workplace.

We also will address how employers can avoid discrimination, harassment, retaliation, whistleblower and privacy claims connected with COVID-19. Leave issues associated with COVID-19 as well as wage and hour issues that will permeate all of these employer challenges will also be examined. Unionization and collective bargaining issues will also be addressed because COVID-19 workplace safety may complicate existing union relationships or give rise to unionization issues that previously were not present for certain businesses and industries.

Finally, we will look at the post-COVID-19 workplace that might arise. Teleworking, office redesign, shift staggering, benefits and employee health issues will be explored.

Edward Diaz, leader of Holland & Knight's national Labor, Employment and Benefits Group, succinctly explains the goal of this series: "Every worksite is unique, and there is no universal solution for these challenges. Our goal is to offer practical ideas and thoughts about how each employer may approach these challenges in a manner that is best suited to that employer."

Holland & Knight's labor and employment attorneys stand ready to offer assistance with these challenges. In addition, as state and local governments continue to issue new orders for May, Holland & Knight provides updated summaries of state and local orders to help companies keep track of regulations and requirements that are essential to all businesses.

DISCLAIMER: Please note that the situation surrounding COVID-19 is evolving and that the subject matter discussed in these publications may change on a daily basis. Please contact your responsible Holland & Knight lawyer or the authors of this alert for timely advice.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.