Gut-wrenching as it has been to close non-essential businesses or to keep essential businesses running while non-essential workers work remotely, it is proving equally, if not more, gut-wrenching to determine how to invite employees back into the physical workplace after the curve flattens and the pandemic subsides. What guidelines exist on reopening workplaces?  How do employers manage employee safety concerns while regaining some sense of back-to-business?  Will back-to-business ever return to pre-pandemic business as normal?

Last week, the White House released federal guidelines for “Opening Up America Again,” giving direction on how to reopen the U.S. economy through a three-phase approach. Governor Abbott subsequently issued several new Executive Orders, with the most recent being GA 18, to begin the process of reopening the state of Texas. Governor Abbott has decided to gradually lift the stay-at-home order, allowing many activities and services to reopen using the “Texans Helping Texans” plan.

In light of Governor Abbott’s order, employers in Texas are now facing the question of what steps they should or must take to reopen their physical workplaces.  Below are 3 tips on how to manage the reopening of the workplace, broadcasting to your employees and the world that, yes, we’re open.

1.     Assess and Mitigate COVID-19 Related Risks Through Proactive Measures

Governor Abbott’s report on reopening Texas contains minimum standard health protocol recommendations that all employers operating businesses in Texas should follow. The recommendations are exactly that: recommendations, not requirements. However, the recommendations may also be interpreted to create minimum standards of care, or phrased differently, best practices for employers based on currently available information.

Among the recommendations is training all employees on appropriate cleaning and disinfection, hand hygiene, and respiratory etiquette, screening employees before work, sending home any employees who are experiencing any possible symptoms of COVID-19, having employees wash or sanitize their hands prior to entering the business, maintaining 6 feet of distance between individuals, individually packaging any meals, and consider having all employees wear cloth face coverings.

Additionally, the Governor’s report includes recommended health protocols for employment facilities. These recommendations include frequently cleaning and disinfecting any regularly touched surfaces, such as doorknobs, tables, chairs, and restrooms, disinfecting any items that come into contact with customers, making hand sanitizer, disinfecting wipes, soap and water, or similar disinfectant readily available to employees and customers, and placing readily visible signage at the business to remind everyone of best hygiene practices.

Further, the Governor has outlined recommendations beginning on page 21 of the Texans Helping Texans plan, regarding how and when employees experiencing signs or symptoms of COVID-19 may return to work. Individuals who have tested positive may return to work if at least 3 days have passed since they fully recovered, the individual has improvements in respiratory symptoms, and at least 7 days have passed since symptoms first appeared. Employees who have experienced symptoms but have not been evaluated or tested are presumed to have COVID-19 and must follow the same three-step criteria as those who have been diagnosed. Employees with known close contact to a person who has been diagnosed with COVID-19 may return to work after the end of a 14-day self-quarantine period from the last date of exposure.

Prior to reopening any physical workplace, employers should also continue to rely on guidance from the CDC and OSHA, state and local authorities, and orders and rules regarding best practices for workplace safety during the COVID-19 pandemic. This entails conducting a risk assessment of physical work environments under OSHA’s Guidance on Preparing Workplaces for COVID-19, during which employers classify the exposure risk level of the various roles in the workplace in accordance with the guidance and take appropriate steps to protect workers with medium, high, and very high exposure risk jobs. OSHA’s guidance recommends minimum standards for each level of risk, but employers can implement more stringent protections, particularly if workplaces are in locations with significant community spread or additional requirements from a city or county Stay at Home order.

Employers should review the CDC’s interim guidance for implementing safety practices for critical infrastructure workers who may have had exposure to a person with suspected or confirmed COVID-19. While the CDC’s interim guidance generally pertains to critical infrastructure workers, the guidance is useful in providing all employers with a baseline framework for implementing procedures to reduce COVID-19 related risks.

The CDC’s recommended procedures include pre-screening employees’ temperatures prior to entering the facility, encouraging employees to self-monitor any potential symptoms and requiring employees to stay home if they feel sick, wearing cloth face coverings, maintaining 6 feet of social distancing as work duties permit in the workplace, and cleaning and disinfecting all areas such as offices, bathrooms, common areas, and shared electronic equipment routinely.

Employers should also conduct a risk assessment of existing personal workspaces in light of OSHA’s guidance and the CDC’s guidance, and consider changes that will reduce possible exposure to COVID-19. Options may include installing plexiglass or other solid screens or dividers between workspaces, particularly for  office plans where employees sit in close proximity to one another, reconfiguring the workspaces to create more physical distance between employees, limiting or prohibiting the sharing of equipment and devices, and developing a plan to maintain recommended social distancing by postponing planned conferences or large meetings, or even implementing alternating shifts when possible.

Finally, employers should review their existing cleaning procedures and consider enhancements, particularly for common areas, with cleaning products that the EPA has deemed effective for use against the COVID-19 virus. The CDC also recommends that employers clean and disinfect all frequently touched surfaces in the workplace, such as desks, keyboards, telephones, handrails, and doorknobs. Additionally, employers should discourage workers from using other workers’ phones, desks, offices, or other work tools and equipment, when possible. If  shared use of these items is necessary for the workplace, employers should clean and disinfect them before and after each use.

2.    Keep Fairness and Objectivity in the Picture

When deciding how, when and who to bring back to the office environment and/or their regular duties in their usual, decisions can be hard and should be based on objective criteria in terms of the skill set needed, the extent of their job completed in the office setting and necessity for running of business operations, etc.

As every lawyer will tell you, proper and reasonable documentation can be your best friend. In that regard, you should consider documenting your legitimate business reasons for how you re-open your business and/or bring your employees back to their work offices. When an employer re-opens their business and/or brings back furloughed or remote working employees, the protocol should not discriminate on the basis of race, color, national origin, sex, and religion.  In evaluating the overall categories of employees being brought back to the office, disparate treatment of employees in a protected class (such as gender or age) should be avoided.

When making these decisions, employers should consult with their HR specialists and employment attorney to make certain that re-opening procedures do not violate Title VII of the Civil Rights Act of 1964, the Texas Labor Code, or any other law pertaining   disparate treatment in the workplace.

Non-disparate treatment starts at bringing back employees free of discrimination but transcends to guarding against discriminatory interactions and communications after the physical workplace has reopened . As more information is distributed through the news and social media outlets regarding the source of COVID-19, its attributes and/or any medical studies on this virus, employers will want to take reasonable measures to prevent this information from being used against employees at the workplace or making employees feel discriminated against and/or feel like they are in a hostile work environment.

Existing policies may have to be modified or updated to specifically address discrimination that involves issues or public perceptions that may arise from or relating to COVID-19, its effect on our economy, and/or its effect personally on individuals directly affected by COVID-19.

3.    Document What You Are Doing

The fluidity of laws, regulations, and guidance documents regarding the novel coronavirus and COVID-19 and the possibility, regardless of whether probable or not, that there may be a second or third wave of the pandemic,  warrants maintaining reasonable documentation of all protocols you are implementing and efforts you are undertaking to comply with federal and state law and county health restrictions. That documentation should include efforts you are undertaking to re-open the physical workplace and bring your employees back to that place in a reasonably safe and non-discriminatory manner.

Some of the items you should consider documenting include:

1. Posting of notices required under Families First Coronavirus Response Act (FFCRA);
2. Discussions with individual employees about questions that may raise about entitlement to benefits and/or leave (especially as to childcare since schools are closed through end of school year), regardless of whether FFCRA applies or not;
3. Protocols for employees to follow regarding safety measures and/or disease transmission measures in place (i.e. handwashing, social distancing of 6 feet, self-monitor health and symptoms, etc.);
4. Protocols to ensure compliance with the Americans with Disability Act (ADA) if you are checking employees’ temperatures when arriving at work;
5. Protocols to ensure the confidentiality of employees’ temperature checks, requests for benefits or leave under FFRCA, and/or any medical information in general;
6. Protocols, processes and systems for re-opening the physical workplaces or businesses, including reasons for re-opening;
7. That all protocols being implemented during the re-opening phase are consistent with your employee handbook and/or policies or procedures manual;
8. If you do not already have one in place, a policy and procedure for teleworking and/or working remotely for future events; and
9. Efforts you have made to stay in compliance with the current recommendations and/or guidelines proposed by EEOC and Department of Labor as to re-opening your business.

There is no question that the decision of when and how to reopen a non-essential business or the physical workplace of an essential business is a difficult one, and one that should be made after careful planning and deliberation.  In that regard, it is always a best practice to consult with a human resources manager and legal counsel regarding any employment-related issues.  The attorneys in our Austin and Dallas offices are available to answer any questions you may have.

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