It’s early May. As my hometown of Louisville, Kentucky adjusts to the absence of the actual Kentucky Derby for the first time since 1875, we are beginning to turn our attention to what it will mean, and what it will take, to re-open America.
This topic has been a widely and fiercely debated one, as Americans discuss the appropriate balance between protecting the safety of the people, and the need to return to a sense of normal and restart our economy. As employers work to determine what this balance means for them and how to most appropriately begin to chart the path back—I wanted to take a few minutes and review some of the resources and key considerations that employers should include in their planning.
There are a lot of guidelines, but employers need to think about what is going to work best for them.
With all of the information, and differing opinions out there, who do you believe? Where can, and should, you turn to for advice? There are differing state approaches being rolled out, and even federal guidelines being introduced as well. It’s important to remember that these guidelines are exactly that, guidelines. Not hard rules or laws, but guidelines to provide a framework for employers. Employers will need to evaluate their own situation to determine what meets the needs of their workforce, their business and their clients.
Legal protections have been proposed but NOT adopted.
Employers have several reasons to be cautious—a desire to protect their employees, a desire to protect their clients and a desire to limit their potential for liability should they re-open before the crisis has safely declined. While some members of Congress have proposed providing employers with legal protections from unsafe workplace claims related to COVID-19, such protections have not been universally supported and are not part of any expected legislation. Following the advice of the experts will likely be a necessary defense to consider as employers move to return their employees to work.
The President's Phased Plan - Guidelines for Opening Up America Again.
President Trump recently rolled out his Guidelines for Opening Up American Again. This framework provides for a phased approach that begins when certain Gating criteria are met. These criteria include a 14-day downward trend in the number of cases of COVID-19, hospitals able to treat all patients without crisis care and robust testing is in place. Once these criteria are met, the framework suggests a phased in approach that begins with telework remaining the preferred approach, and employees returning to work in phases.
Employers are also encouraged to limit non-essential travel and accommodations for more vulnerable populations. Phase one includes closing common areas in businesses where people may congregate (such as breakrooms) and to encourage strict social distancing. Phase two and three slowly relax these restrictions (with telework remaining encouraged until phase three, along with accommodations for vulnerable populations and restricting common areas.)
While this provides a high-level framework, we are seeing states move forward, and in some cases, skip phases, relative to the President’s guideline. Since the decision to re-open ultimately resides with the states, these actions are permitted, although they do not obligate employers to open up within a specific timeline, nor do they provide protection from potential claims.
Several agencies and state and federal entities have begun issuing guidance on reopening.
Many include common requirements, like the availability of personal protective equipment, accommodations for more vulnerable populations (or those living with or caring for members of a vulnerable population), employee temperature check stations, teleworking wherever possible and more stringent cleaning.
As employers work to develop a plan, they will likely need to vary their plan based on:
- Individual office locations
- State guidance
- COVID-19 local prevalence
- Office and workforce requirements
In forming plans, employers should take the time to review the guidance available. To save you some time, here is a list to get you started.
- Additional resources available to employers include state specific COVID-19 guidance. An example of this guidance can be found at the Kentucky’s Governor’s Healthy At Work website.
- Additional resources are being made available by the Environmental Protection Agency and Centers for Disease Control, which recently issued a guide for cleaning and disinfecting businesses in advance of re-opening. This resource can be found here.
- OSHA’s Guidance for Preparing Workplaces for COVID-19.
- The CDC recently drafted a 17-page guide for businesses looking to re-open. While this document has not been finalized (and is believed to be under review with the White House), news agencies have reportedly obtained copies of this document, available here.
- The President’s Guidelines for Opening Up American Again.
I’m grateful that we were able to transition to working remotely in a seamless manner, but I must admit, I do look forward to returning to the office when it's safe. I hope these resources assist employers in developing their return-to-work plans.
For more COVID-19 resources, please check out our page below.