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By: Richard J. Simmons, Brian D. Murphy, and Adam R. Rosenthal, Sheppard, Mullin, Richter & Hampton LLP
While there is no one-size-fits-all solution to creating a safe workplace, employers must carefully monitor guidance from the Centers for Disease Control (CDC), state and local health departments, Occupational Safety and Health Administration (OSHA), and state and local government authorities concerning the various workplace measures they must adopt to curb the spread or resurgence of COVID-19.
Employers should recognize that some cities, counties, and municipalities have taken a much more active role than others in regulating businesses and enacting regulations, and many differ in the forms of regulation they impose. As a result, employers should address such differences when deciding how best to achieve overall compliance within the various jurisdictions in which they operate.
On April 16, 2020, President Trump and the White House Coronavirus Task Force announced a three-phased approach for states to gradually reopen business, titled the “Guidelines for Opening Up America Again” (the April 2020 Guidelines).1
In recognition of the fact that each individual state will ultimately decide when and how to reopen the economy, the April 2020 Guidelines provide a roadmap for what the Administration believes the opening up of the country should look like. These guidelines plainly respond to mounting pressures from many segments of the population and the country to reduce the ranks of the jobless and facilitate a revival of the economy. The initial guidelines invite states to evaluate back-to-business programs without mandating that states initiate the actual process before they determine it safe and appropriate to do so.
Before any state can begin the phased reopening process, the state (or a region within the state), must satisfy the following three preconditions:
In addition to these prerequisites, during each of the three phases, states are expected to (1) maintain sufficient testing and contact tracing for symptomatic individuals; (2) maintain sufficient personal protective equipment (PPE) and critical medical equipment to handle a dramatic surge, along with ICU capacity; and (3) develop and enforce plans covering everything from protecting the health and safety of workers in critical industries to advising residents regarding protocols for social distancing and face coverings.3 Once states can satisfy these prerequisites and have sufficient plans in place to contain the spread of COVID-19, they can begin phase one.
Each of the three phases has its own unique benchmarks and expectations of what employers should do to help their state complete that phase and move to the next one. Employers can generally expect the following conditions placed on them during each phase (recognizing that states and local governments will invariably augment and expand upon these restrictions):
Consistent with the federal, state, and local guidance and the lifting of stay-at-home/shelter-in-place orders, tens of millions of Americans are returning to their usual workplace (either after being unemployed for a period of time or after working from home). As part of this process, business leaders will need to implement practical workplace policies and procedures that balance business needs with the health and safety of their employees. Following are potential considerations that employers should discuss with legal counsel:
Designation of a COVID-19 Czar
A key component of effective crisis management is centralized communications. A COVID-19 czar or post-crisis czar can serve as an organization’s point person responsible for managing the response to the pandemic. In consultation with senior leadership and health and employment law experts, this individual is chiefly responsible for developing and enforcing health and safety policies. Duties will necessarily include revising and implementing the organization’s infectious disease preparedness and response plan, as well as unique policies and procedures relating to how employees interact with one another, customers, and other third parties.
Depending on the organization and the future trajectory of the pandemic, the COVID-19 czar may be entrusted with emergency powers to, for example, suspend operations, restrict access to the premises, or, where permissible, force employees to obtain medical clearance before returning to work. Depending on the size of the organization, this leader may be solely responsible for managing this crisis or may take this important task on with his or her other duties.
As a condition to allowing “non-essential” businesses to reopen during phases one and two of the April 2020 Guidelines, local and state authorities will likely mandate that employees practice some form of social distancing in the workplace. Whether social distancing results from such government directives or informal policing by employees themselves, the public consciousness regarding an easily spread virus likely will not dissipate quickly. This has and will continue to be particularly challenging in those environments where employees have traditionally worked in close proximity to their co-workers and the general public (e.g., classrooms, construction sites, assembly lines, restaurants, gyms, etc.), and impossible in many other environments (e.g., hospitals, airplanes, hair salons, etc.).
Workflow Plans Limiting Physical Proximity
Where feasible, organizations should consider developing workflow plans that, to the extent possible, limit the physical proximity between and among employees and customers. Depending on the environment, this may include physical adaptations, such as erecting permanent plexiglass barriers, well beyond the timeframe suggested by OSHA engineering protective measures. It may also include restrictions on how close employees and customers can stand or sit near one another.
In addition, since organizations have been forced to have many employees work from home during the first few months of this pandemic, as stay-at-home orders are lifted, many companies may either permanently transfer office employees to full-time remote workers, or more likely, schedule days when certain office employees are required to work from home and other days when they need to be in the office. This may take the form of assigning workers to an “A” or “B” designation, and implementing a schedule when “A” employees come to work and “B” employees work from home, and vice versa.
Interpersonal Hygiene Policies
In addition to social distancing, employers should develop policies around interpersonal contact in the workplace. This may include everything from policies that prohibit handshaking and other physical greetings, to rules concerning sharing equipment (e.g., phones, headsets, computer keyboards, etc.). Many state orders explicitly prohibit handshaking and physical contact and discourages employees from sharing phones, desks, tools, and equipment.
Policies on Interpersonal Activities Outside of the Workplace
Employers may also develop policies concerning interpersonal activities outside of the workplace. For example, as discussed above, many local and state stay-at-home orders have been lifted so long as people continue to practice social distancing outside of work (e.g., restrictions on X number of individuals congregating in the same area, restrictions on certain sports and entertainment venues, etc.).
In the event this occurs, employers may consider having lawful policies in place should an employee engage in certain risky behaviors outside of work (e.g., close interactions with strangers, attending large indoor public events, deciding not to wear a mask while in public, traveling to known hotspots, etc.).
Before implementing any such policies, employers should consult with an experienced employment lawyer, as these policies could run afoul of existing laws that prohibit employers from disciplining employees for engaging in lawful activities outside of the workplace, or other discrimination prohibitions.
Employee Personal Protective Equipment (PPE)
The lack of sufficient personal protective equipment (PPE) for healthcare workers was reported widely during the first month of the COVID-19 pandemic. As a condition of returning non-essential employees to work, cities and states are mandating that certain employees wear respirators, surgical masks, or non-respirator cloth or paper face covering in the workplace. In April 2020, Los Angeles10 and New York11 state, for example, issued ordinances and executive orders requiring that essential workers don face coverings, particularly if interacting with customers or members of the public. This will pose several challenges for employers.
In addition to the lack of available PPE (where respirators are required), employers will need to ensure that any mouth and nose covering does not interfere with the employee’s ability to safely perform his or her job. Wearing a respirator or face covering for an entire shift will be challenging for many employees who are not accustomed to such restrictions.
Depending on whether businesses are required to have their employees don a face covering, or the business decides on their own to require face protection, employers will need to develop policies and procedures around use of PPE in general and cloth/paper face coverings in particular. These policies may need to take into account several considerations, including:
Customer and Visitor Face Coverings and Personal Protective Equipment (PPE)
Absent a directive from local, state, or federal government regarding the general public wearing face coverings outside of their homes, employers must consider developing PPE policies and procedures with respect to their customers, students, patients, vendors, and the general public that come into contact with the organization’s employees. Similar to the “no shirt, no shoes, no service” signs, organizations will need to decide whether to require third parties to wear face masks when engaging with their employees in person. Companies should also consider training their employees on how to safely and appropriately interact with customers who either refuse to wear a mask for political reasons, or don offensive or inappropriate masks that violate the company’s values (patrons of a private business do not have a free speech right to wear offensive clothing or paraphernalia or spew hate speech).
Increased Cleaning and Sanitization
Workplaces following the COVID-19 pandemic will need to be much more sanitary. Employees and the general public will insist that organizations spend more time and resources on cleaning physical facilities. In addition to supplying hand sanitizer stations (which will require sufficient quantities) and access to hand washing with antimicrobial soap and warm water, organizations may need to train, and likely increase, the number of janitorial staff to regularly clean and disinfect high-touch surfaces in common areas (e.g., tables, chairs, doorknobs, light switches, common phones, touch screens, keyboards, toilets, and sinks).
A designated COVID-19 czar, or other official, should be responsible for ensuring that the employees or third-party contractors responsible for janitorial services are complying with strict coronavirus prevention guidelines. In addition to regular cleaning and sanitizing, organizations will need to work closely with facilities and maintenance to develop best practices concerning proper air circulation.
It remains to be seen what tools will be available to employers and the general public for use in combatting COVID-19 resurgence in the future. Below are possible tests that may become routinely used in the workplace.
Once there are sufficient and reliable tests available for private sector employers outside of healthcare, employers will be able to regularly test employees to determine whether they are COVID-19 positive. On April 24, 2020, the Equal Employment Opportunity Commission stated that employers may permissibly test workers for COVID-19 before allowing entry into the workplace as doing so will be “job related and consistent with business necessity” under the Americans with Disabilities Act.14
In the event that such tests are readily available, employers may need policies to ensure that the testing is done in compliance with existing employment laws, including those pertaining to employee privacy, anti-discrimination, and wage and hour. Provided there are sufficient tests available for the general public, businesses will also need to consider policies and procedures around testing employees based on a risk factor assessment, including for example, employees who recently returned from business or personal travel in an area with known hot spots, employees who have been in contact with individuals who have contracted coronavirus or COVID-19, or individuals who engage in certain risky behaviors outside of work. Recognizing that large scale testing of the general public is not currently feasible in the United States, employers should nevertheless consider how they might test employees should the resources become available during or after the current pandemic.
As of April 2020, the CDC recommended that essential critical infrastructure workers who have been exposed to someone who has COVID-19, or is suspected of having the virus, can return to work provided they abide by a number of guidelines while at work (e.g., wearing a face covering, social distancing, etc.), and are subject to a pre-screen temperature check.15
Similar to what has occurred in parts of Asia where stay-at-home orders were lifted in early April 2020, thermometer scans will likely become prevalent across the country. It is entirely possible that in some parts of the country, before people are allowed to walk into a shopping mall or board an airplane, they will need to first pass through a thermometer checkpoint.
Develop Thermometer Scanning Policies
Employers will need to establish clear policies around thermometer scanning that account for, amongst other things:
In the event a reliable COVID-19 antibody test is developed, establishing that a person contracted coronavirus and developed sufficient antibodies, it may be possible to determine which employees are no longer susceptible to COVID-19. As of April 2020, it was premature to determine how employers could possibly use the results of an antibody test. There may be opportunities to loosen certain COVID-19 policies for those employees who are immune from contracting and spreading the virus.
Employers should continue to monitor scientific developments in this area. It is entirely possible that if an accurate test were to be developed at some point in the future, employers may be permitted to select employees to work in certain jobs based on whether or not the employee is immune from this virus. Giving preference to employees who have a COVID-19 immunity will likely raise a host of employment law issues (e.g., application of EEO and non-discrimination policies for both employees with immunity and those without immunity, seniority and staffing, and wage and hour concerns regarding whether the employer or employee should pay for the cost of the antibody test and certification).
Renewed Focus on Employee Mental Health
It will take several years for psychologists and social scientists to fully grasp the profound impact the pandemic has had on people’s mental health. While the pandemic has affected every person on the planet, its impact has certainly not been equal. When the economy begins to open, and remote workers return to the workplace and companies actively rehire many employees who were furloughed or laid off during the apex of the crisis, employers will need to be responsive to the mental health toll that this crisis has had on their employees—particularly those employees who are grieving the loss of family and friends as well as those employees who are under significant financial stress. Organizations should be mindful of these challenges and consider providing additional mental health resources to support their employees during this unprecedented time.16 The article is current as of June 5, 2020.
Richard J. Simmons is a partner in the law firm of Sheppard, Mullin, Richter & Hampton LLP in Los Angeles. He represents employers in wage-hour, discrimination, and wrongful discharge lawsuits. He has represented employers in over 100 class action lawsuits and landmark decisions. Richard represents employers in various employment law matters involving litigation throughout the country and general advice regarding state and federal wage and hour laws, employment discrimination, wrongful discharge, employee discipline and termination, employee benefits, affirmative action, union representation proceedings, and arbitrations. Brian D. Murphy is a partner engaged in private practice in the New York office of the law firm of Sheppard, Mullin, Richter & Hampton LLP. He represents employers and management exclusively in all fields of employment law, with a particular emphasis on the defense of wage and hour class and collective actions brought under the Fair Labor Standards Act and New York Labor Law, pay equity analyses, and class actions brought under the Fair Credit Reporting Act. Mr. Murphy is the co-author of The Wage and Hour Manual for New York Employers. Mr. Murphy also frequently writes for the New York Law Journal, the National Law Journal, and Employment Law360, among other publications, on a wide variety of topics of interest to employers. Adam R. Rosenthal is a partner in the law firm of Sheppard, Mullin, Richter & Hampton LLP in the firm’s San Diego (Del Mar) and Los Angeles offices. He represents a broad spectrum of employers in various areas of employment law before federal and state courts and arbitration forums. Mr. Rosenthal has significant trial and arbitration experience on behalf of employers in single-plaintiff and class action lawsuits involving wage and hour disputes, wrongful termination, harassment, discrimination, retaliation, and non-compete and trade secrets disputes. In addition to his litigation practice, Mr. Rosenthal advises clients throughout the country on employment law compliance matters.
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1. See Guidelines for Opening Up America Again, White House (April 16, 2020) (last visited on April 17, 2020) at https://www.whitehouse.gov/wp-content/uploads/2020/04/Guidelines-for-OpeningUp-America-Again.pdf. 2. Id., Slide 2 (“Proposed State or Regional Gating Criteria”). 3. Id., Slide 3 (“Core State Preparedness Responsibilities”). 4. The April 2020 Guidelines identify the following people as “vulnerable individuals”: (1) elderly individuals and (2) individuals with serious underlying health conditions, including high blood pressure, chronic lung disease, diabetes, obesity, asthma, and those whose immune system is compromised such as by chemotherapy for cancer and other conditions requiring such therapy. 5. Id., Slide 9 (“Phase One Employers”). 6. Id., Slide 10 (“Phase One Specific Types of Employers”). 7. Id., Slide 13 (“Phase Two Employers”). 8. Id., Slide 14 (“Phase Two Specific Type of Employers”). 9. Id., Slide 16 (“Phase Two Individuals”). 10. http://publichealth.lacounty.gov/media/Coronavirus/HOO_Safer_at_Home_Order_for_Control_of_COVID_04102020.pdf. 11. https://coronavirus.health.ny.gov/system/files/documents/2020/04/doh_covid19_eo20216employeefacecovering_041420.pdf. 12. See What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws (Question G2) (last visited April 24, 2020) at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws. 13. See, e.g., The New York Times, Who’s Enforcing Mask Rules? Often Retail Workers, and They’re Getting Hurt (May 15, 2020) (last visited May 19, 2020) at https://www.nytimes.com/2020/05/15/us/coronavirus-masks-violence.html; The Washington Post, A man wore a KKK hood at a grocery store after San Diego County required face masks (May 4, 2020) (last visited May 19, 2020) at https://www.washingtonpost.com/nation/2020/05/04/kkk-hood-coronavirus-mask/. 14. See What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws (Question A6) (last visited on April 24, 2020) at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws. 15. Centers for Disease Control, Interim Guidance for Implementing Safety Practices for Critical Infrastructure Workers Who May Have Had Exposure to a Person with Suspected or Confirmed COVID-19 (last visited Apr. 14, 2020) at https://www.cdc.gov/coronavirus/2019-ncov/downloads/critical-workers-implementing-safety-practices.pdf. 16. This article is an excerpt from Castle Publications’ eBook entitled Employer's Guide to COVID-19 and Emerging Workplace Issues by Sheppard Mullin Labor & Employment partners Richard J. Simmons, Brian D. Murphy, and Adam R. Rosenthal, available for preorder on the LexisNexis Store here.