The data used to support the guidelines suggests infections have decreased to an acceptable level and hospitals are not overwhelmed with COVID-19 patients. Although not binding, the guidelines encourage states to authorize businesses to reopen in three phases. During each phase, states should monitor various metrics, such as new confirmed COVID-19 cases and hospitalizations, to ensure re-opening has not triggered a resurgence of COVID-19 infections. Assuming no resurgence, states would permit businesses to progress to phase two and three of reopening.
With non-binding guidelines, employers must wait for direction from their state because states regulate a business’ right to open. Businesses need information on timing and conditions to implement in order to re-open. Multi-state employers must monitor the orders in all applicable states and ensure compliance with any state-to-state differences. Assuming state orders mirror the guidelines, employers should prepare to reopen with the guidelines in mind. As illustrated in the chart below, the Guidelines identify both specific and general employer “responsibilities” to ensure safe re-openings.1
During all phases, employers should implement policies to address:
- Social distancing and protective equipment
- Temperature checks
- Testing, isolating, and contact tracing
- Use and disinfection of common and high-traffic areas
- Business travel
Employers also should not allow employees with symptoms of COVID-19 to physically return to work until cleared by a medical provider, and have a process in place for workplace contact tracing following an employee’s positive test for COVID-19.
The guidelines provide additional specific guidance during each phase of the re-openings. Businesses seeking to reopen promptly after receiving their state’s “green light” should begin developing these policies now, aligning them with industry best practices and applicable federal, state, and local law and regulations and guidance.
Specific Phase Employer Responsibilities Referenced in White House Guidelines
|Practice||Phase 1||Phase 2||Phase 3|
|Strongly consider accommodations for vulnerable employee populations||Yes. Vulnerable individuals should shelter in place||Yes. Vulnerable individuals should shelter in place||No. However, vulnerable individuals should resume public interaction with social distancing|
|Encourage telework whenever possible and feasible||Yes||Yes||No|
|Close common areas where employees are likely to congregate or interact or enforce strict social distancing||Yes. Individuals should avoid social settings of 10+ persons.||Yes. Individuals should avoid social settings of 50+ persons.||No. However, individuals should minimize time spent in crowded environments.|
|Impose business travel restrictions||Yes. Minimize non-essential travel and follow CDC isolation guidelines after business travel.||Yes. Minimize non-essential travel and follow CDC isolation guidelines after business travel.||No|
Three steps businesses can take to prepare to reopen America
In alignment with the White House guidelines and anticipated state re-opening orders, businesses can take steps to facilitate the process.
Develop Plan to Reopen in Phases, Consider the Ability of Employees to Telework
As no one knows whether reopening will trigger a COVID-19 resurgence, employers should mitigate risks by returning employees to work gradually, if possible.
- Analyze your business operations:Identify the business functions that must be reactivated first.
- Identify the jobs supporting those operational needs: Also, identify what employees initially should be returned in those jobs. As part of this assessment, identify any additional individuals capable of teleworking and place them back on a work schedule.
- Telework policy: If you have not done so already, consider implementing one or develop an agreement to ensure employees understand and satisfy performance or conduct expectations while teleworking.2
Once the initial phase of functions and workers are identified, identify and prioritize your remaining business functions and employees, creating a preliminary timeline for each group’s return. As employees may challenge recall decisions as discriminatory, take steps to articulate and document the legitimate, non-discriminatory reasons why you invited certain employees to return and when.
Prepare to Accommodate “Vulnerable Populations”, Employees with Special Needs
Some employees may be reluctant to return to work and the reasons might vary. Anticipate this will happen. In fact, consider encouraging employees to raise COVID-19 concerns before they return to work. Consider the following to help the process of returning to work.
- Forms to document concerns: Make available so employees can complete.
Some reasons may be legally protected, preventing you from forcing employees to return. Other reasons will not have legal protection and, as a business, you must decide how you will respond based on a mix of business necessity and culture/employee relations philosophy.
- Members of a “vulnerable population”: Try to anticipate issues related to such employees, including individuals who are “elderly” (age 65 and older according to the CDC), and individuals with serious underlying medical conditions, including (but not necessarily limited to) high blood pressure, chronic lung disease, diabetes, obesity, asthma, and those whose immune system is compromised, such as by chemotherapy.
These employees may be unwilling to return to work for fear of becoming ill. In these instances, consider engaging employees in an interactive process to determine whether reasonable accommodations may allow them to return to work safely. Keep in mind that although the White House guidelines encourage employers to accommodate vulnerable populations, federal or state law may require accommodations.
- Employees who resist returning to work: Be prepared to triage different situations, identifying any potential legal protections that might exist. Consider your ability to obtain documentation in each circumstance under federal, state or local law. As these circumstances can become legally complex, consider discussing your responses with your HRG or legal counsel.
Alternatively, you may be concerned that returning vulnerable workers pose heightened risks to their health for which you will be morally or legally responsible. Significantly, federal law prohibits employers from denying older workers the opportunity to work based on their age. Therefore, consider informing these employees in writing of the potential risks given the nature of their particular jobs, any state or local public health recommendations encouraging them to shelter in place, and ask them to provide their informed consent to return to work.
If employees still choose to return to work, encourage them to self-monitor their health and observe strict social distancing practices while working.
Disabled workers pose different concerns. To prevent disabled workers from returning to work, you must generally prove that doing so will pose a “direct threat” of harm, defined as a “significant risk of substantial harm that cannot be eliminated or reduced by reasonable accommodation.” Direct threat determinations must be based on medical input so, at a minimum, you would need to request an opinion from the employee’s healthcare provider concerning the employee’s ability to return to work safely.
Potential Reasons Employees May Decline to Return to Work During the COVID-19 Pandemic
ReasonExamples of Potential Legal Protections
Employees with school-age children whose schools remain closedFFCRA3, state or local laws
Employees with family care-giving responsibilitiesFFCRA, FMLA, state or local laws
Employees experiencing general, non-clinical anxietyState or local laws
Employees with household members in vulnerable populationsFFCRA
Employee is older and vulnerable to COVID-19 infectionState or local laws
Employee has physical condition or disability and is vulnerable to COVID-19 infectionFMLA, ADA, state or local laws
Implementing Practices to Mitigate and Manage Risks of COVID-19 Infection
A key to protecting all employees, but particularly members of vulnerable populations (including an employee’s household or family members who are members of vulnerable populations), is to mitigate the risk that they will be exposed to COVID-19 infection while working.
This highlights the importance of implementing policies and procedures to prevent and manage the risk of COVID-19 infection at work. The guidelines identify a number of policies and practices likely to be encouraged or required by states or localities. Among them are the following:
- Fitness for duty: Implement and manage closely policies requiring employees to remain home if they are sick. If you have fewer than 500 employees, you may be a covered employer under the Families First Coronavirus Response Act(FFCRA). The FFCRA provides leave entitlements for COVID-19 related reasons. Employees also may be entitled to time off under state or local paid sick leave or paid family leave laws.
- Temperature checks, testing, isolating, and contact tracing: The transmission and spread of COVID-19 will still be a concern when businesses reopen. Temperature taking and COVID-19 tests are potentially effective ways to prevent the infection from spreading in your workplace.
- Consider when temperatures will be taken
- Who will take them
- How the information will be recorded
- Steps to take for a high temperature
Some states or localities impose specific standards for temperature checks (e.g., temperature to be used as a cut-off). Develop and communicate policies explaining the steps you will take to screen temperatures or test for COVID-19 infection or antibodies.
Isolation and contact tracing are keys to mitigating risks posed by actual or suspected COVID-19 infection. Become familiar with laws providing benefits for employees who are subject to precautionary quarantines. Determine state or local requirements for contact tracing including your obligation to notify coworkers, vendors, and/or customers of potential exposure. This would typically include:
- Identifying areas of the workplace where infected employees worked and implementing proper sanitation following CDC recommendations.
- Social distancing and protective equipment: Implement proper protocols such as individuals staying at least 6 feet apart, using masks/shields/face coverings, staggering work shifts, using separate entrances and exits, and limiting number of employees in a work area.
- Sanitation and infections control of common and high-traffic areas: Increase cleaning and sanitizing of common areas of the workplace, particularly counters, credit card machines, merchandise conveyor belts, door handles, etc. Increase the frequency of general cleaning.
- Business travel: Carefully analyze the need for business travel. Many companies are prohibiting visitors, and employees should travel only in the most necessary of circumstances. Also, consider whether employees returning from business travel need to self-isolate for a period of time, typically 14 days. Before employees travel for business, consider alternative methods such as video conferencing, webinars, shipping materials, and local sourcing.
Preparing now for the day you receive the “green light” to reopen your business will allow you to reopen more smoothly, effectively, and safely. Begin evaluating how you can implement the above three steps and assess closely whether and to what extent your state adopts the White House guidelines for Opening Up America Again.
1Requirements also can differ based on specific industries, such as schools, senior living facilities, hospitals, gyms, and bars. 2Employers should make teleworking decisions by job function, not individual employee, to avoid potential issues of unfair treatment. 3The Families First Coronavirus Response Act (“FFCRA”) generally applies to employers with less than 500 employees.