In-House Counsel Considerations for the New Normal Workplace: Five Key COVID-19 Return-to-Work Protocols

By: Elias Kahn, Esq., Sr. Product Manager
Labor & Employment, Tax, and Employee Benefits & Executive Compensation

There was no corporate legal department manual for how to navigate the past year. The COVID-19 pandemic was a true black swan event that left in-house counsel scrambling to determine the areas of risk that needed to be mitigated, contractual issues that needed to be revisited and corporate compliance requirements that needed to be satisfied.

Now, as companies around the world prepare to bring their employees back into their workplaces following a year of coronavirus lockdowns and quarantines, in-house counsel are hustling to manage a host of workplace-related legal considerations. This has once again forced corporate legal departments into the position of writing a new operations manual in real time.

Based on our conversations with leading employment law practitioners and authors of top employment law practical resources and books, here are five key COVID-19 return-to-work protocols for your organization to address before you welcome your employees back to the new normal workplace.

1. Vaccinations

The global effort to vaccinate as many individuals as possible has significantly accelerated. In-house counsel have been quickly determining whether they can require their employees to be vaccinated and what vaccination-related guidance and COVID-19 vaccine employment policy they need to ensure compliance with applicable laws. The Equal Employment Opportunity Commission (EEOC) provided crucial guidance under federal law that allows employers to institute a policy requiring employees to be vaccinated against COVID-19, but they laid out four key exceptions that must be recognized. If an employer chooses not to require vaccinations, they may still offer certain encouragements to employees, but the EEOC has also identified important limitations on what enticements employers may provide. See COVID-19 Vaccination: Key Employment Law Issues.

2. Screening Procedures

Companies need to have in place a COVID-19 screening policy covering a variety of on-site safety protocols for both vaccinated and unvaccinated employees who are returning to the workplace, starting with medical screening procedures. A helpful treatise from Castle Publications, LLC, written by Richard J. Simmons, L&E partner at Sheppard, Mullin, Richter & Hampton, LLP, Employer’s Guide to COVID-19 and Emerging Workplace Issues, walks through a number of these lawful screening criteria (e.g., respiratory symptoms, body temperature assessments, etc.) and critical guidance from public health authorities. In-house counsel should beware that medical screening procedures are not popular with many employees and appear to be a driver behind employee complaints about return-to-work protocols, but they are an important component strategy for protecting your workforce. For state and local COVID-19 screening requirements, see Coronavirus (COVID-19) Employee Screening State and Local Law Survey.

3. Mask Mandates

Face coverings are a proven tool for slowing the spread of the virus, and should not be set aside now that we are in the final stages of the pandemic. In fact, employers should still maintain a face mask policy and require workers to wear masks and follow other practices meant to stem the spread of COVID-19, even after they have been vaccinated, according to guidance from the Occupational Safety and Health Administration (OSHA). The guidance does not impose new legal requirements on employers, but provides a detailed list of practices OSHA suggests they follow in order to reduce the risk of the virus spreading in their workplaces. The OSHA guidance states: “Workers who are vaccinated must continue to follow protective measures, such as wearing a face covering.”  For state and local face mask requirements, see Coronavirus (COVID-19) Face Masks State and Local Law Survey.

4. Physical Distancing

Physical distancing—or “social distancing” in the parlance of one of the catchphrases of 2020—has become a familiar fixture of businesses operating during the pandemic. As vaccination programs ramp up across the country, OSHA also recommends that employers continue having workers follow the same safety measures, in light of the Centers for Disease Control and Prevention (CDC) guidance that it doesn’t have enough information yet about how vaccines affect transmission of the virus. This means that companies need to review the placement of their cubicles, desks, conference room chairs and even the table arrangements in their break rooms and cafeterias. In-house counsel should make sure they have a clear social distancing policy in place that requires employees to have sufficient space between each other to avoid a resurgence of COVID-19 in the workplace.

5. COVID-19 Testing

While it is tempting to declare victory over COVID-19 every time we see the number of new cases declining, it is still important for employers to remain vigilant in identifying a potential outbreak in their workplaces. A key tool in this effort is to continue providing, facilitating and encouraging employees to obtain COVID tests anytime they feel symptomatic or have been exposed to someone who has tested positive for the virus. However, in-house counsel should exercise caution by consulting the latest CDC guidance on how they approach a COVID-19 testing policy, because the CDC’s guidance has evolved considerably over time. For example, an infected person may not test positive depending on the stage of infection at the time they are tested; likewise, employees may test positive for months after recovering from COVID-19, but not represent a risk of infection to anyone if they return to work.

The reality for most organizations, of course, is that not all employees will be returning to a physical workplace right away. The work-from-home boom of 2020 is likely to remain part of a new operating model for businesses worldwide, to some degree or another. See Telecommuting Agreements: Key Drafting Considerations, Telecommuting Agreement and Telecommuting Employees: Best Practices Checklist. In fact, corporate legal department professionals are on the leading edge of this push. One survey of in-house lawyers and legal operations leaders found that 48% of them are inclined to continue working primarily remotely, even once it is safe to return to the office, according to a Law360^® Pulse report. So the number of employees who will be part of the “return-to-work” movement in 2021 – 2022 is not likely to replicate the number of employees physically located in the pre-COVID-19 workplace.

For those companies that are preparing for the return of large numbers of workers to office buildings, retail environments, manufacturing facilities and industrial work sites around the globe, in-house counsel have an important duty to ensure their organizations are taking the proper steps to protect their workforce and comply with applicable laws.

LexisNexis^® is collaborating with ALM^® to host a free webinar for members of corporate legal departments, on April 29 at 2:00pm ET. For more information and to register for this event, please register here.