Podcast: COVID-19 Employer Reopening Compliance Challenges

Employers are facing numerous dilemmas as they prepare to reopen their worksites. New York City employment attorney Jason Habinksy joins XpertHR Legal Editor David Weisenfeld to discuss how to handle these return-to-work challenges without violating employment laws. Habinsky chairs the labor and employment practice group at Haynes and Boone.

"HR professionals will be additionally busy as we return to the workplace," said Habinsky. "A big part of that is going to be reassuring employees that their employer is taking steps to protect them." Habinsky notes that the next phase after returning to work will likely be the complaint and litigation phase. Some key issues for employers to be aware of include:

  • How to accommodate at-risk employees;
  • Privacy concerns involving employee temperature checks;
  • OSHA considerations;
  • Discrimination claims involving furloughs; and
  • Potential wage and hour claims.

Listen Now

Additional Resources

Podcast: What Will Post-Pandemic Workplaces Look Like?

Coronavirus (COVID-19): Return-to-Work Overview

Coronavirus (COVID-19): Return-to-Work Checklist

Transcript

David Weisenfeld: I'm David Weisenfeld for XpertHR.com, published by Reed Business Information and proudly partnered with LexisNexis.

Our last podcast took a deep dive into what post-pandemic workplaces may look like and the future of work. It's a topic worth revisiting as many states have begun restarting their economies and are allowing some businesses to reopen. But before employers do reopen their physical worksites there are a host of compliance challenges they cannot afford to ignore, especially with laws changing seemingly on a daily basis.

So we'll explore the biggest return-to-work dilemmas facing employers and how to handle them with New York City employment attorney Jason Habinsky. Jason is a partner with Haynes and Boone, where he chairs the firm's labor and employment practice group, and he's been a regular of ours on our podcast series over the years. Hi Jason. [0:01:10.9]

Jason Habinsky: Hi David. How are you?

David Weisenfeld: I'm doing well, and I guess the bigger question is how are you because you're right in the heart of this in New York City, and no place has been hit harder. What's all this been like for you? [0:01:22.2]

Jason Habinsky: Well not surprisingly as an employment attorney I have been quite busy. Obviously these are critical issues for employers and my clients, and not only does it involve legal issues but of course it involves health, safety, livelihood. So the issues are critically important, and I have been spending a lot of time, it's really a 24/7 job, helping guide my clients in protecting the workplace and protecting the employees.

In addition that, as you mentioned, really the developments have been not only complex but rapid-fire, so I have been sure to be on top of all of the latest developments which are evolving on a minute-by-minute basis. So I certainly have been busy.

David Weisenfeld: Well you mentioned the key phrase there, 'protecting employees,' and I'm definitely going to get to that. But before I do, a lot of focus right now on what a return to work actually is going to look like, but it seems the bigger question really is, "What if employees don't want to come back?" Now of course that's not practical for some jobs, like retail in particular, but a recent nationwide survey shows that 77% want at least some degree of telework to continue. What are your thoughts on that and how big of an issue that's going to be for employers? [0:02:47.2]

Jason Habinsky: I do really think that it's a balancing test. Employers need to think about how important it is to have employees back in the workplace on Day One. A lot of employers have said that employees have continued to be very productive while working from home and working remotely. Others have said that it's difficult for employees to work from home. Certainly in some industries, as you mentioned, it's impossible to work from home.

So obviously employers need to think about the business side of it - how many employees do they need, and do they need them working in the office? And then with that said, there's no need to rush back. The directives are lightening up the restrictions, but that doesn't mean you have to bring everyone back on Day One. If there's a way to safely stagger shifts or hours or days in a way which protects employees in the workplace, maybe that will be enough to reassure employees that they're not all being rushed back to work on Day One.

In addition to that it's important for an employer to consider whether there are legitimate reasons why employees are reluctant to go back to the workplace. Are they protected by a federal, state or a local leave law, like the Family and Medical Leave Act, because they're taking care of someone who is sick or they're taking care of a child who is out of school and protected under the enhanced Family and Medical Leave Act? So I think that's the first and most important consideration. Is an employee requesting to continue to work from home for a reason that's protected under a certain leave law?

And then otherwise to really consider whether there's any legitimate concerns that an employee is raising. Obviously it's important for an employer to be taking all the important steps to protect the health and safety of the workplace, complying with various laws, including OSHA. So employers who are taking those steps should be able to reassure the employee that:

  • Important steps are being taken;
  • The employees are going to be protected when they do come back to work; and
  • If they continue to have concerns then you can continue to try to reassure them that they are going to be safe.

However, there may be circumstances where an employer needs an employee to come back to work and the employee has no legitimate reason other than is simply afraid or scared to come back to the workplace, and we all understand where they're coming from. But an employer does have to make some business decisions. So if there's an essential employee they need to come back, I wouldn't coerce that employee, but you can certainly strongly encourage them to come back to work and if necessary take appropriate action.

David Weisenfeld: Now Jason, what about at-risk employees? There's been a lot of talk about maybe staggered returns where employees under 50 or who don't have pre-existing conditions are coming back first. But when I hear that, what jumps out to me is that the Age Discrimination In Employment Act potentially could be an issue there because there might be older employees who are in good health and there's no reason why they can't come back. So how do employers strike that balance without running afoul of age discrimination laws? [0:06:00.3]

Jason Habinsky: That's a really good question. What I would advise is to be prepared to accommodate but don't discriminate. In other words, you don't want to assume that someone does not want to come back to the workplace, or is incapable of coming back to the workplace, simply because they're of a certain age or simply because you may assume that they have some sort of medical condition. You don't want to assume.

What you want to do is be prepared to accommodate an individual who suggests that they have some sort of issue, whether they're pregnant, whether they're of a certain age, whether they may be susceptible to the virus for some reason, and then engage in a discussion and an interactive process just like you would do under the ADA or applicable state or local law.

So in other words don't assume that someone will not want to come back to the workplace or can't come back to the workplace, but be prepared to have that discussion and take appropriate steps if someone is concerned for these various reasons. So I really think that the theme is be prepared to accommodate.

David Weisenfeld: It sounds like just try to avoid a blanket, across-the-board policy is probably good practice as well. [0:07:08.1]

Jason Habinsky: That's right. I think that's right. I think it's on a case-by-case basis. In other words, if someone has a particular circumstance you want to engage in a specific discussion regarding those particular circumstances, not assuming that simply because someone is in a protected age group, or someone may have some condition that could affect them, that they don't want to come back or they can't come back.

David Weisenfeld: Again we're speaking with Jason Habinsky, who chairs the labor and employment practice group with Haynes and Boone and practices in New York City. Jason, what about the issue of taking temperatures at the door before employees enter the workplace? Is that a practical solution? [0:07:53.3]

Jason Habinsky: Well it's certainly a solution. The question is whether it's the best solution or whether it's a solution which will work best for an employer. Temperature, of course, is the most prominent symptom of the coronavirus. However, as we know, the coronavirus is a very challenging virus that really affects individuals differently. So someone could come into the workplace without a temperature and still have the coronavirus or be asymptomatic. So it does not resolve the issue of individuals could be symptomatic but simply not have a certain temperature.

And in addition to that, while it may certainly demonstrate that certain individuals are symptomatic, it does pose additional risks for an employer. In other words, you're putting testers at risk. Whoever you decide is going to take the test, whether it's co-workers or managers or human resources professionals, if you have individuals who work for you administering the test, there's obviously potential risk to them as well. They're potentially subjecting themselves to the virus themselves.

You want to make sure that they're adequately and sufficiently protected by using PPE. You want to make sure that they are trained appropriately, so they understand the risks and understand how to administer the tests.

So there are very, very significant risks, in addition to other obligations including with respect to confidentiality, with respect to blood-borne pathogens, depending on what types of tests you're taking in addition to temperature checks. So although it sounds like a good and easy solution there are potential risks that come with that.

David Weisenfeld: And I'd imagine the biggest question also is who administers the test? Should it be a manager, or should the employer outsource that? You mentioned the risks to the testers themselves. Who's in the best position to be giving the test? [0:09:55.9]

Jason Habinsky: Well the safest course would be to have someone who is professionally trained administering the tests by outsourcing or using a third party, whether it's nurses or whether it's some practitioners with experience, rather than subjecting human resources professionals or managers or someone within the workplace to administer those tests, because if someone's been professionally trained obviously they're in a better position to effectively and safely administer the tests.

But it's really going to cross the board as to what employers are willing to do. Other employers do not want to take any of those risks and instead are providing thermometers or temperature check tools to their employees to test themselves at home so that the employer is not putting any of their own employees at risk.

David Weisenfeld: And you mentioned confidentiality a few moments ago. Privacy's a big issue here. I imagine employers really have to ensure that employees aren't standing in a line waiting to be tested so that 30 or 40 of their closest friends don't see the results of that test. Certainly a lot to consider. [0:11:08.8]

Jason Habinsky: I think that's exactly right. Now you're essentially administering something which could be deemed a medical test, so there are privacy concerns. In other words, you want to make sure that the results of those tests are not shared inappropriately with other co-workers. To the extent you are documenting anything or putting anything in writing, that triggers additional obligations, including keeping the data and those records confidential and safe as medical documents, in addition to making sure that they're not shared with other co-workers and that it's employer's eyes only for certain individuals who are tasked with essentially guarding those records and documents. You want to make sure that the information included in those records is not shared with anyone else.

David Weisenfeld: Jason, as we record this, in states like Georgia and Texas and others this is very real, this is happening now. But in the Northeast a return still seems quite a bit further away. So what's the biggest question that you've been hearing thus far from your clients? [0:12:20.1]

Jason Habinsky: It's really gone in phases. Initially - and this is now several months ago - the question was, "Well what do you do if someone's symptomatic? What steps do we take if somebody's sick or somebody lives in a home or somebody's associated with someone who's symptomatic?"

Then it moved towards, as the workplaces started to close, "How do you handle the lack of work? What do you do with respect to reductions and furloughs and working remotely?" And now we're in the phase of course where my clients are asking the same questions you're asking:

  • "We are about to open up the doors to the workplace. What should we start doing now?
  • How should we prepare?
  • How can we keep the workplace safe?"

So that's really the question now. The phase is, "Hey, we're going back to work. What do we need to do about it?"

David Weisenfeld: And in terms of what they need to do about it, do employers need to have personal protective equipment on site for their employees, like masks? What are their responsibilities in that regard? [0:13:17.8]

Jason Habinsky: Employers do not need to provide any PPE to employees, and of course that's industry based. There are certain industries and certain jobs where PPE would in fact be required, including healthcare practitioners and in some other industries. But generally an employer is not required to provide masks. An employer certainly can provide masks or allow employees to provide masks, but what an employer needs to keep in mind is that certain requirements with respect to masks could trigger certain obligations under federal and state law, including OSHA.

For example, certain masks trigger obligations as a respirator, which would require the employer to take various steps under OSHA, including training and conducting a certain review of the PPE, among other things, and having certain written policies. So an employer needs to keep in mind when it is requiring that employees do wear certain PPE in the workplace, that it may trigger some additional obligations.

David Weisenfeld: You just mentioned OSHA, and we recently saw the first lawsuit against a meatpacking plant for safety violations relating to COVID-19. And we also have seen the first back pay awards for COVID-19 violations for employers denying emergency paid sick leave. I'm sure more is likely coming. What types of claims do you anticipate seeing? [0:14:43.5]

Jason Habinsky: As I mentioned earlier, talking about phases, the next phase after returning to work is the complaint and litigation phase. And as you said, we're starting to see some of the claims and potential claims that employees are raising. And with extraordinary times and difficult times, of course, the byproduct of that is the potential for litigation and complaints and concerns. And we're already starting to see them, and we will see them in so many different respects.

As you mentioned, with respect to leave employees complaining that they weren't appropriately given the opportunity to take leave, to take care of sick relatives, themselves, their kids. And the other, as you mentioned, is with respect to safety, that employers aren't taking the appropriate steps to protect the workplace.

You'll also see potential complaints regarding discrimination as part of reductions in force or furloughs, or who the employer decides to bring back to the workplace. You most likely will see issues with respect to accommodation, in other words that employers haven't taken appropriate steps to accommodate employees.

And that also includes employees who have come back to the workplace with additional psychological or emotional issues as a result of post-traumatic stress disorder, anxiety, stress, any other issues they might now be suffering from as a result of the traumatic times. So employers need to be prepared to be in a position to accommodate additional disabilities as employees return to the workplace. So there could be some issues there.

Of course wage and hour issues with respect to employees who were paid less, who had their days or their time or their hours reduced, or their duties changed, or even their classification changed. There could be potential wage and hour issues. So the list is long.

David Weisenfeld: It certainly is. Well Jason, in our final minute or so do you have a final piece of advice for HR professionals in communicating with employees as their companies begin this process of reopening? [0:16:54.0]

Jason Habinsky: Sure. And certainly the HR professionals are going to be additionally busy as we return to the workplace. And I think a big part of that is going to be reassuring employees that the employer is taking steps to protect the workplace and implementing protocols to protect employees. We do expect to see much more employee vigilantism and employees who are on high alerts if they see or believe other employees might be sick.

I think HR professionals need to be prepared that they're going to get a lot of complaints from employees or concerns from employees that another employee is coughing or sniffling or looks or appears to be sick. So I think they have to be prepared to address those concerns and understand that employees are going to be sensitive and on high alert, and be prepared to take steps not to discourage employees from reporting issues but letting them know that the employer has tasked appropriate parties to deal with potential issues and continues to take steps to protect the workplace.

I also think HR professionals need to be prepared to provide support, kind of in that same realm that employees are going to need additional support. As I mentioned before, they're going to have additional stress and anxiety in returning to the workplace, and even further may have conditions that have been caused by these extraordinary circumstances. And with that, of course, HR professionals need to be prepared for these additional requests for accommodation in essentially all respects.

I think that employees are going to be asking for accommodations:

  • Whether it's continuing to work from home;
  • Whether it's to work remotely for a period of time;
  • Whether it's to take more time to take care of someone else who's sick, or as I mentioned;
  • Take care of additional issues that they are suffering from as a result of traumatic circumstances.

David Weisenfeld: OK, we'll let that be the last word. Jason Habinsky chairs the labor and employment practice group at Haynes and Boone, and is with the firm's New York City office. Jason, thanks so much for your time and the insights. [0:19:00.6]

Jason Habinsky: My pleasure, David.

David Weisenfeld: I'm David Weisenfeld. We hope you've enjoyed this podcast. Continue checking our website regularly for more podcasts on how the coronavirus is affecting the workplace, including Reducing Anxiety Amid the COVID-19 Mental Health Crisis.

The opinions expressed in this program do not represent legal advice, nor should they necessarily be taken as the views of XpertHR or its employees. XpertHR.com is published by Reed Business Information, and is proudly partnered with LexisNexis.

For more information about XpertHR, our subscription offering, or our 50-state Employee Handbook, call us toll free at 1-855-973-7847.