Before you Reopen Your Business… Read This!


When your business is cleared by federal, state and local authorities to reopen, you will have a duty to keep your employees and customers safe. You need to plan now for reopening safely. Your specific plan depends on the type of business you have, the physical facilities and the degree of risk.

You will need to be both vigilant and flexible. The standards and regulations change constantly.

Most of the guidelines discussed below are “considerations” from the relevant federal agency, but using these guidelines can provide a defense to an unsafe workplace claim or negligence claim from a customer/client.

Remember that the relevant workplace laws are still in place (anti-discrimination, wage and hour, safety, workers compensation, accommodations, etc.) and the COVID guidelines must be administered on top of the existing laws and regulations.

Step 1: Determine your business level of risk, and what solutions you need to implement. For example:

  • Reconfiguring the workspace to spread out more.

  • Allowing some people to work from home, staggering arrival times or shifts.

  • Installing physical barriers.

  • Providing handwashing or sanitation stations.

  • Assigning specific entrances to employees to reduce congestion.

  • Marking the elevator and lobby for social distances.

  • Requiring face masks or other protective equipment.

  • Minimizing physical contact.

  • Adjusting the sick leave policy.

  • Putting up signs with new procedures to remind employees of social distancing and new hygiene requirements.

  • Know the local regulations. Some states are restricting businesses to operate at 25 percent of capacity.

Step 2: Based on OSHA, CDC and EEOC, determine if you need to implement new workplace policies, such as:

  • Cleaning and disinfecting. Stay current with OSHA policies. They change.

  • Temperature checks. You can require employees to have their temperature checked. There are three ways to go about this: (1) have employees self-check and mark a form: OK or Sent Home; (2) have an employee with proper personal protective equipment (PPE) take temperatures (not recommended) or (3) hire a third-party to take temperatures. If temperatures are taken at work, this time needs to be compensated. Think about privacy and social distancing. Medical records need to be kept separate from personnel records. Both should be locked.

  • Requiring facemasks or other PPE. Remember these may be considered uniforms and employees need to be compensated for learning how to use them, putting them on and maintaining/cleaning them.

  • Social distancing expectations. Think about entrances and exits, time clocks, break rooms and other places employees congregate.

  • Procedures for dealing with employees with heightened risks, such as those over 65 and with underlying conditions. People may refuse to wear masks or have their temperature checked. They may be hesitant to come back to work for safety reasons. Find out why and engage in a conversation to work out reasonable accommodations. This may mean providing PPE, moving their workstation to a more isolated area, or permitting them to work from home.

  • Duty to self-report symptoms, exposure or contact with sick people. How are you going to handle this if you require reporting? Have an isolation room where you can take the employee to work through your process. Have facemasks available. Consider having the employee consent to having their name disclosed upon a positive result to people in contact with the symptomatic or exposed employee.

  • Policy for visitors or customers in the workplace. Think about how to reduce contact.

Step 3: Communicate your policies. We recommend you develop your policy now, before your employees are permitted to return. Send a written notice to your employees with the “new normal” described in detail. This should help calm employee fears and anxieties by showing them you have carefully considered their safety. It can also be used as evidence that your policies follow CDC and OSHA guidelines. Confirm who is coming back. If employees refuse to return, speak with counsel.

Consider new signage both to remind employees of new practices (eg: wash or sanitize your hands before using the copy machine) and to highlight your practices to reassure both employees and customers.

As with any workplace policies and procedures, adopting the plan is not enough. Now, more than ever, you must follow your policies. Make sure your policies don’t discriminate against a protected class, such as sex, race, age or disability. All the anti-discrimination laws still apply. Especially watch for a policy that seems neutral on its face, but ends up having a disproportionate effect on a protected class of employees.

Resources:

https://governor.nc.gov/news/governor-cooper-announces-modified-stay-home-order-and-transition-phase-1-easing-restrictions

https://files.nc.gov/governor/documents/files/NC-3-PHASE-PLAN.pdf

https://www.nc.gov/covid-19/business-employer-covid-19-resources

https://www.osha.gov/Publications/OSHA3990.pdf

https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/businesses-employers.html

https://www.youtube.com/watch?v=X50G7l41NKg

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