Ice Miller LLP: Insights

Do You Have a Plan (for Returning to Work)?

As our federal, state, and local governments “reopen” the economy, employers—whether they have been operating at partial capacity, remotely, or closed altogether—need to prepare for their employees to return to the workplace. Even essential businesses operating without interruption will need to revisit how they conduct operations. Multiple states, including Indiana and New York (see our 50-State Summary), are requiring that all employers develop a plan to ensure a safe environment for their employees, customers, clients, and members. Do you have a plan? Does it cover what it should? If not, now is the time to put one together or make some necessary updates.

Many employers are asking what their plans should cover. As you prepare your plan, consider general topics like:

How you are preparing/have you prepared a safe workplace?
How will you prepare/have you prepared your employees to return?
How will you manage employees who are unable or unwilling to return?
How will you handle issues that may arise when employees return?

Without thoughtful consideration of these items, you may find yourself unprepared for the reopening of your workplace. We covered some of these items in our April 29, 2020 webinar, “Preparing for the Return (To Work).” You may find that, as you think through these issues, you need to update or revise a variety of policies, beyond the written return to work plan you may be required to prepare, provide to employees, and potentially post.

The content of the written return to work plan, and how you need to distribute it, will depend on your industry and on your location. For example, on May 1, 2020, Indiana’s Governor ordered that all employers develop a return to work plan on or before May 11, 2020, which plan shall be provided to each employee and shall be posted publicly. The Indiana return to work plans shall, at a minimum, include: (1) an employee health screening process; (2) “enhanced cleaning and disinfecting protocols for the workplace, including regular cleaning of high-touch surfaces;” (3) measures to enhance the “ability of employees, customers, and clients to wash hands or take other personal hygiene measures such as use of hand sanitizer;” and (4) methods of “complying with social distancing requirements established by the CDC, including maintaining six-foot social distancing for both employees and members of the general public when possible and/ or employing other separation measures such as wearing face coverings or using barriers.” As with many other state orders, the Indiana Governor’s most recent executive order contains many qualifiers and restrictions. Some states (e.g., Illinois and Ohio) are not requiring a written return to work plan but have provided industry specific guidance on reopening.

Employers are well advised to seek legal counsel to ensure compliance with their respective state orders. You cannot assume a plan that meets the requirements of one state’s orders will meet the requirements of all state orders, or any applicable federal guidelines. Let’s take, for example, the questions of whether an employer must or should require that employees wear facemasks. Employers can turn to both federal and state guidelines to make this decision. OSHA and the CDC’s (and state equivalent) guidance related to wearing of facemasks states that employers should “allow workers to wear masks over their nose and mouth to prevent spread of the virus.” The guidance, however, is not a mandate. Neither are some state orders. Indiana’s most recent executive order does not mandate the usage of face coverings in most industries, but makes them a part of other separation measures to consider. They are required, however, for employees in retail and restaurants. Other states have broader takes. In Ohio, for example, businesses must require all employees to wear facial coverings, with certain exceptions. These different approaches highlight the need for employers with locations in multiple states to review the respective state orders and seek counsel on complying with a particular jurisdiction’s return to work requirements.

Regardless of how you have been operating during the pandemic, if at all, communication remains key to a successful return to work plan. To help avoid unnecessary concerns and to alleviate fears, your employees need to know how you plan to keep them safe. Even those who are not concerned about COVID-19 need to understand what to expect when they return. Therefore, your published plan, beyond complying with the applicable state (and local) requirements (like those noted above), should cover basic and fundamental items such as:

Your communication method and plan
Whether some or part of your workforce can or will be continuing remote work
Any physical changes you made (or are making) in your workplace, such as reconfigured common spaces and workstations, controlled access with designated entrances/exits, and the installation of barriers
Enhanced cleaning and disinfecting procedures
Required employee health screenings (e.g., temperature taking, symptomology evaluation, self-certifications, etc.)
The responsibilities of all employees to follow social distancing and “hygiene” requirements (e.g., promote handwashing, covering coughs/sneezes, etc.)
Other job site protection measures you are taking such as limiting visitors, travel, and meetings; the use (or non-use) of other’s work area, tools, and equipment; possible shift work; use of facemasks or personal protective equipment (PPE); and other work practice controls (see, e.g., the CDC’s Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19))
Any industry specific requirements (see, e.g., the industry-specific guidelines on the CDC’s website and comparable state websites)
What to do if employees have symptoms of COVID-19 at the workplace or have been exposed outside of the workplace
How employees should handle the need for a leave or an accommodation issues (see, e.g., Families First Coronavirus Response Act: Questions and Answers, COVID-19 Does Not Suspend EEOC Obligations, and Ice Miller’s other resources on the FFCRA)
How you will protect employee confidentiality and privacy
Where employees can go with questions
What type of training will be provided

In some instances, employers may consider a “summary” version to post and a longer version to publish to its employees. Also, remember the plans are fluid documents that may need to be changed as things progress.

If you need any assistance with your return to work plan, please contact Tami Earnhart, Paul Sweeney, or any other member of our Labor, Employment & Immigration Group.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.