Skip to main content

How to Reopen the Workplace: Part 3, Considerations from Legal Council

In a recent webinar from the American Subcontractors Association, the organization’s Attorneys’ Council answered top questions about reopening. Legal questions surrounding COVID-19 range from questions over company responsibilities and liabilities, to what constitutes reasonable health and safety concerns from employees.

This article is the third in the NGA’s series on reopening the workplace. While many industry companies were allowed to stay open as essential businesses during the initial COVID-19 outbreak beginning in March, companies have had to reimagine and reinvent procedures and operations in an effort to prevent the spread of the coronavirus. 

In a recent webinar from the American Subcontractors Association, the organization’s Attorneys’ Council answered top questions about reopening. Legal concerns surrounding COVID-19 range from questions over company responsibilities and liabilities, to what constitutes reasonable health and safety concerns from employees. 

The panelists noted that the best protection for any company is a well-developed plan. “As long as a company is acting as a good faith contractor, that should provide defense to any general duty clauses,” says Charles Keller, Snell & Wilmer LLP. “This usually requires some sort of implementation of a reopening plan. The key component is education.” 

This article presents top considerations for reopening and welcoming employees back to the workplace, from the ASA Attorneys’ Council webinar. The following recommendations focus on employee health protocols. Find additional recommendations on reopening the office from part 1 in the series, and reopening the factory, in part 2. And read recommendations on working in people’s homes here

Recommendations for employee health 

1. Educate employees

For any type of company reopening their workplace during COVID-19, employee education on new health and safety practices is top priority. “Don’t assume your employees are aware of the risks. Don’t assume they are going to self-monitor,” says Dan McLennon, Smith, Currie & Hancock, LLP, Attorneys Council Chair. “Start with educating all workers and management staff to make sure workers are aware of systems, what training process that should happen before they step foot onsite and what workers need to know if they’ve been sick or exposed.” 

2. Develop a return-to-work strategy for employees

Part of reopening the workplace is developing a plan to ensure that potentially sick or exposed employees stay home. “Some employers are requiring medical clearance [for employees] to return to work. However, this may be tough, given that the health care system is overloaded. It may be difficult to get provider certification,” says McLennon. 

A more achievable option for most companies includes a combination of education, symptom monitoring and self-certification. “That means an employee has to be educated about the risks, exposure, how long someone is symptomatic, contagious,” he says. “Start with the symptoms. An employer needs to come up with their standard of the symptoms they are going to educate on.” (See the updated list of symptoms from the CDC).

The next step is employee self-monitoring and self-isolating, if necessary. “Employers can use a standard form they give out to contractors—a self-certification says ‘I have not tested positive for COVID; I’m not awaiting results; I’m not experiencing and have not had any of these symptoms; I have not been exposed,’” McLennon says. 

3. Consider on-site checks

Part of the reopening strategy for many companies is to require temperature checks upon entry to an office, jobsite, manufacturing facility or other. “Most of our clients are now opting in to take temperatures,” McLennon says. If an employee has an elevated temperature, send them home or directly to a medical provider, “though do it in a discrete way that protects privacy as much as possible,” he says.  

4. Know the quarantine recommendations

Per the CDC, anyone with symptoms should be quarantined for seven to 10 days—this is the recommendation for people who are symptomatic and for anyone who tests positive. Anyone in close contact to those individuals should also be quarantined for 14 days after last exposure. (Read the complete CDC guidelines for quarantine and self-isolation.) 

“The impact on business can be significant,” says Keller, and could become more so as the prevalence of testing increases. 

To limit the negative impact of lengthy quarantines, companies can also consider testing exposed employees, rather than waiting for the 14-day quarantine. However, because tests do have a 1/5 chance of false results, businesses should perform two tests within 48 hours, says McLennon. “If an employee passes with two negatives, they are probably safe to come onto your jobsite,” he says. “It can get them back faster.” 

5. Know the protocols for positive tests

The CDC provides guidelines for companies in the event an employee tests positive. “In most cases, you do not need to shut down your facility. But do close off any areas used for prolonged periods of time by the sick person,” according to the CDC. 

Companies should wait 24 hours and then thoroughly clean the employee’s work area. Additionally, companies should perform contact tracing to determine which other employees may have been exposed.

“Understand where your employees are moving,” says Keller. This can aid in effective and efficient contact tracing.

6. Understand the rules for employee leave

Some companies are expressing concerns over employees staying home when it’s not required, either because the employee is afraid to come to work because of potential exposure, or because an employee is taking advantage of emergency sick leave provisions, according to the panelists. 

Regarding fear of exposure, “OSHA does allow workers to stay home if they believe they are in eminent danger,” says McLennon. “They are allowed to stay away for as long as the danger is reasonably present—if a worker knows sick people are on the jobsite, or if an employer isn’t doing anything. If an employer is doing screening, training, getting people to self-monitor, isolate, certify, providing hand washing stations, then the probability is that the worker’s fear is not considered reasonable.” 

Some companies are also concerned about employees taking unnecessary advantage of the emergency Family and Medical Leave Act provisions in the Families First Coronavirus Response Act. (Details on sick-leave allowances in the act here).

Panelists recommend that medical certification be required for an employee to take sick leave under the emergency FMLA. “You want to make sure employees don’t use this frivolously,” McLennon says.