Open For Business

Legal Considerations for Reopening the Workplace

by Danielle Maya, Cotney Construction Law

(Editor’s Note:  Danielle Maya is a partner at Cotney Construction Law and has over 20 years of experience as an attorney.  Cotney Construction Law is an advocate for the roofing industry and General Counsel of Western States Roofing Contractors Association.  Maya can be reached at (866) 303-5868.)

As businesses start to reopen around the country, after the abrupt halt to the economy caused by COVID-19, employers need to be aware of and prepared for the legal issues that their businesses face during these unprecedented times.  Advance planning, as well as reviewing all laws and orders in connection with the pandemic, will be crucial for businesses to help avoid any costly and distracting litigation.  Implementing policies and procedures before welcoming employees back to work will allow for a smooth transition when your business does reopen, and employers will be more protected and prepared if an issue or problem does arise. 

         The first step every employer should take, if they have not done so already, is to review the applicable federal, state, and local laws and orders to determine how they may impact their business and the reopening process.  This will not only give the employer up-to-date information on the pandemic but will also provide key information on how a business can stay in compliance with any new laws.  Employers also need to stay well informed on guidance from the Centers for Disease Control and Prevention, Occupational Safety and Health Administration, and the World Health Organization.  This information will allow businesses to implement policies that are best suited for their company while also complying with all applicable laws, orders, and health guidelines.

         Next, a company should implement policies and procedures that should address how the company plans on dealing with social distancing, requirements for personal protective equipment (PPE), sanitation, and screening methods.  Employers must implement social-distancing procedures that are consistent with state and local requirements.  Examples of social-distancing procedures that a company could implement would be bringing back employees in stages or to stagger scheduling to limit the number of employees in the office or at the jobsite at any given time.  If applicable, a company could continue to encourage employees to work from home if they have already demonstrated that they can be just as productive working remotely as in the workplace.  

         As for PPE, companies should develop a non-discriminatory policy governing employee use of PPE and may choose whether wearing such equipment is mandatory or not.  As for sanitation, a company should improve and reinforce housekeeping procedures, which might include increasing the frequency of cleaning; focus on frequently touched surfaces, tools, and equipment; and might require a change in the disinfecting products.  Finally, a company should assess whether to implement a screening process before employees enter the workplace to test for COVID-19.  It is worth noting that testing is not a substitute for taking other protective measures at the worksite.  The company policy also needs to address procedures for already infected employees, reporting procedures, and protocols when an employee exhibits COVID-19 symptoms at work.  Implementing company policies and procedures will need to be company specific because different circumstances require different approaches.

         A well-drafted company policy will integrate a variety of strategies to curb the spread of COVID-19 as described above, but one of the most effective strategies is training and informing employees.  Any policy or procedure that is implemented by the company needs to be thoroughly explained to the employees.  Knowledge is extremely important because even though a company might have the correct strategies in place, they will be useless if the employees do not understand and follow them.

         Numerous legal issues could arise when implementing a company policy in response to COVID-19, so the policy needs to be carefully drafted to avoid liability.  All return-to-work protocols and leave requests must be implemented without discrimination or retaliation.  Employers also need to ensure there is no harassment in case an employee does test positive.  Privacy can also become an issue, and it is the employer’s responsibility to take steps to protect employee privacy and keep medical information confidential in accordance with all applicable laws.  A company can also be subject to an OSHA penalty for being cited for workplace hazards because of a failure to act reasonably to address known COVID-19 related risks in the workplace.  These are just a couple of examples of the legal problems that can arise when reopening a business, so it is crucial that a policy is not only carefully drafted, but implemented and enforced correctly.

         When reopening a business, employers should consider developing and implementing carefully written policies and/or updating existing policies to ensure that the business complies with all applicable laws to provide a safe work environment for its employees.  These policies will not only help limit the spread of the COVID-19, but will also reduce your liability if they are implemented and enforced in accordance with the laws. 

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