Who Needs to Know
Employers who are reopening (or have already reopened) by bringing employees back to their workplaces.
Why It Matters
Bringing a workforce back to the workplace, whether from teleworking, furlough or layoff status, is an exercise with many moving parts. Employers need to follow a reasoned strategy to address COVID-19-related risks and other considerations associated with recalling some or all of a workforce to develop a sensible back-to-work protocol.
Troutman Pepper is issuing a series of client advisories, Navigating Adapted Operations, to help businesses design workplace operations adapted to the challenges of sustaining business efforts during and after the COVID-19 pandemic. This series will address how businesses can reopen, recover or control workplaces in the face of operational changes that could last even longer than first planned.
They invite your questions and feedback on every topic and also ones you may want addressed, but are not covered thus far. Their aim is to provide a comprehensive review of matters that will enable employers to make informed decisions about the overlap and interplay of health/safety, risk management, financial challenges and workplace oversight. At the conclusion of the series, they will share a dynamic outline of the categories examined that clients may adopt to navigate their own adapted operations.
Phased Approach Considerations
Determining Who Should Return and When
When implementing a phased approach to reopening, employers should assess their workforce to determine which employees will be asked to return. Will it be all employees or just employees performing certain select business functions? Will those employees be required to return or asked to return only if they feel comfortable doing so? If feasible, employers should consider using anonymous surveys to evaluate their employees’ concerns and willingness to return to work.
When deciding which employees will be asked to return, employers should consider applicable federal, state and local anti-discrimination laws, including:
- The Age Discrimination in Employment Act (ADEA);
- The Americans with Disabilities Act of 1990 (ADA); and
- Title VII of the Civil Rights Act of 1964 (Title VII).
Employers should also decide which employees will be prohibited from returning to the workplace, such as those currently experiencing COVID-19 symptoms and those who have had potential exposure to COVID-19. These decisions should be made and documented after thoughtful consideration of current guidance from the Centers for Disease Control (CDC), World Health Organization, the Equal Employment Opportunity Commission (EEOC), the federal Department of Labor and its agencies – such as the Wage and Hour Division (WHD) and Occupational Safety and Health Administration (OSHA) – as well as from state and local public health departments.
A detailed Phased Opening Considerations guideline is provided for your use in evaluating and imposing adapted Workplace Safety Measures, Return to Office Steps, Communication Planning, and Implementation and Monitoring Assessment.
Creating and Implementing a COVID-19 Response Plan
After determining who should return and when, employers should adopt a written COVID-19 response plan addressing:
- How the employer will conduct business during the “new normal”;
- How it plans to reduce the risk of disease spread among employees, clients, customers, or guests; and
- How it will respond to a case of COVID-19 among its employees, clients, customers, or guests.
COVID-19 response plans should comply with applicable federal, state and local government requirements and guidance. For example, Cal/OSHA requires California employers to have a written Injury and Illness Prevention Program (IIPP) and has issued interim guidance advising employers to update their IIPPs to address COVID-19 prevention measures. All employers, including those proceeding with IIPPs in California, should work with their business operations and workplace safety teams along with legal counsel to develop protocols for sustained adjusted operations.
Oversight of Safety Efforts and Managing Information Collected
While every employer will need to determine the appropriate guidance and mandates that apply to their reopening procedures, all businesses will need to answer the following questions in their COVID-19 response plans:
- How will the business train employees about COVID-19 best practices and procedures?
- Who will oversee responding to and staying up to date on COVID-19 issues – and who will fill that role if the oversight leader for COVID-19 becomes ill or quarantined?
- How will the business implement social distancing protocols for employees and customers?
- Will employees and/or customers be screened or surveyed on a daily basis for COVID-19 symptoms?
- If so, what requirements does the state, county, or city impose for screening employees and/or customers?
- And, how will the employer maintain the confidentiality of any medical information collected from employees and customers resulting from such screening?
- If required, what types of personal protective equipment (PPE) will the business provide to its employees and/or customers?
- If certain PPE is required for employees, will the business discipline employees who fail to wear the required PPE (unless the individual has a valid religious or disability-related reason for not wearing a particular type of PPE (e.g., a mask) that does not create an undue hardship)?
- How will the business address customers or visitors who fail to wear PPE?
- How will the business respond if an employee tests positive for, exhibits symptoms of, or is exposed to COVID-19?
- How will the business respond if it learns that an employee is engaging in risky off-duty behavior?
- What if that off-duty behavior involves activities of known or suspected exposures to the virus?
Known or Suspected Exposures or Infections
One of the most difficult challenges for any employer will be how to respond to the presence of symptoms or a possible COVID-19 infection in the workplace. Different courses of action may be warranted depending on the job of the infected person. The impact from a managerial employee – who comes into contact with many employees throughout the organization – will likely be different than the impact from an employee who works alone and rarely comes into contact with others.
- When and how will a company notify others of an infection?
- Who will be notified?
- Will the business need to fully or partially close and conduct a deep cleaning?
- Will the business assist with contact tracing efforts, and, if so, how?
The EEOC has clarified that an employer cannot identify the name of an infected employee to any persons other than managers with a demonstrated need to know the identity, though co-workers who may have come into contact with the individual can be informed of the exposure on an anonymous basis. See Question B5 EEOC COVID-19 Technical Assistance Questions and Answers (“Employers should make every effort to limit the number of people who get to know the name of the employee.”) (last updated September 8, 2020).
Benefits Concerns for a Returning Workforce
After deciding when and how to reopen, and after worksites have been retrofitted for compliance with COVID-19 safety measures, employers will begin the process of calling back remote and furloughed employees, and, in some instances, employees who have been laid-off, to the worksite. Below is a general overview of benefits-related onboarding issues employers are likely to face during emergence. For a more detailed outline of such issues, we refer you to our alert: COVID-19 Resource Guide for Human Resources Professionals: Employee Benefits Considerations for Reopening in 2020.
Type of Furlough or Layoff Impacts How to Return Employees to Workforce
The onboarding process will be different based on the employment status of the returning individual. Employers must determine whether the returning individual was: (i) furloughed and receiving benefits; (ii) furloughed and not receiving benefits; or (iii) laid-off. Additionally, an individual’s eligibility for benefits may change pre- and post-furlough or layoff if the individual has a change in job status, hours, or other change in circumstances. Employers that are not able to return to pre-COVID employment levels must also determine whether the decrease in personnel has adverse implications for their employer-sponsored retirement plans.
Furloughed employees remain employees of the employer during the period of furlough and, therefore, generally do not experience an interruption in employer provided health and welfare benefits although employee 401(k) contributions are temporarily suspended. The onboarding process for furloughed employees who continued to receive benefits is relatively seamless. Payroll deductions for required employee health and welfare plan premiums and employee elective deferrals generally resume upon return from furlough, subject to any changes in employment status that may affect eligibility. Retirement plan administrators may be required to determine the extent to which the period of furlough is counted for purposes of vesting and the right to allocation of contributions, as well as address the treatment of loan repayments upon returning from furlough.
In contrast, laid-off employees have been terminated and must be rehired by the employer. Formerly laid-off employees receive the same onboarding treatment as newly hired employees and the terms of the applicable plan documents – 401(k) and health and welfare plans – govern when and to what extent an individual is eligible upon rehire, subject to the Affordable Care Act (ACA)’s break-in-service provisions, which provide that individuals rehired within 13 weeks are considered returning employees and not new hires. Furloughed employees who did not participate in employer-provided benefits before furlough are treated similarly to laid-off employees.
As the COVID-19 pandemic continues to challenge business operations throughout the country, employers must remain vigilant and adopt strategic measures to implement a phased approach to reopening and design a COVID-19 response plan. They must also anticipate facing various challenges regarding their benefits plans.
- Richard Gerakitis, Partner |richard.gerakitis[at]troutman.com
- Rebecca Alperin, Counsel | rebecca.alperin[at]troutman.com
- Kristalyn Lee, Associate | kristalyn.lee[at]troutman.com
- Leigh H. McMonigle, Associate | leigh.mcmonigle[at]troutman.com
- Lee E. Tankle, Associate | lee.tankle[at]troutman.com
- Moses M. Tincher, Associate | moses.tincher[at]troutman.com
- Emily E. Schifter, Associate | emily.schifter[at]troutman.com
Compliments of Troutman Pepper – a member of the EACCNY.