New York Forward: Returning to the Workplace 10 Questions to Answer Before Reopening Your Business
Businesses in New York State are beginning to reopen. While we are not yet able to reopen non-essential businesses in New York City or Westchester, we can and should start to think about what reopening will look like and prepare our plans and policies so that we can reopen safely and lawfully when permitted. Below are 10 questions any New York employer should be able to answer before reopening its workplace.
1. Are you eligible to reopen?
Non-essential businesses in each New York State region will re-open in phases. Eligibility will depend on health metrics in your specific region and on the nature of your industry. The State has created a Reopening Lookup Tool, which will tell you if your business is permitted to operate. Currently, only “Phase One” businesses (Construction, Agriculture, Forestry, Fishing and Hunting, Retail with curbside or in-store pickup or drop off, Manufacturing, and Wholesale Trade) in certain geographic regions are permitted to reopen.
The CDC has also created a Workplace Decision Tool, providing workplace considerations for reopening.
2. Are you familiar with and able to comply with the Summary Guidelines in effect for your industry?
The State has provided Summary Guidelines and Business Safety Plan Templates for each of the Phase One industries, setting forth both mandatory and recommended best practices. The guidelines address issues such as physical distancing, protective equipment, cleaning and hygiene, employee screening, and communications planning. Businesses (whether an essential business continuing to operate or a reopening business) must affirm that they have read and understood their obligation to operate in accordance with the State’s guidance.
Each business must also develop a written Safety Plan outlining how its workplace will prevent the spread of COVID-19. A business may fill out the State’s Safety Plan Template or develop its own. While the Safety Plan does not need to be submitted to any state agency for approval, it must be retained on premises and made available to the New York State Department of Health or local health or safety authorities in the event of an inspection. As more industries are permitted to reopen, we can anticipate additional guidance.
In addition, the Occupational Safety and Health Act requires employers to provide employees with “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” On its website, the Department of Labor has outlined certain OSHA standards and directives and other related information that may apply to worker exposure to COVID-19. Employers should also review OSHA’s Guidance on Preparing Workplaces for COVID-19, containing recommendations and descriptions of mandatory safety and health standards.
3. Who should return to the workplace?
Once you have decided that you can and should reopen, you need to start thinking about how and who. Because of the continuing obligation to maintain social distancing, businesses should consider whether all or some employees can continue working productively from home.
Some businesses may be in a position to bring back some but not all of their employees and must decide who to bring back when and in what order. Businesses must keep in mind that existing employment laws remain in effect protecting employees from discrimination based on protected categories (such as age, gender and race) and requiring employers to provide reasonable accommodations to employees with physical or mental disabilities. Any work-related decisions must be based on legitimate and non-discriminatory reasons and employers should be able to clearly articulate why they chose to bring back one employee over another. While equal employment opportunity laws do remain in effect, they do not interfere with a business’s ability to follow CDC guidelines or guidance from state or local public health authorities.
4. How are you going to maintain social distancing in the workplace?
Each workspace is different and what will work for one may not work for another. If necessary, consider ways you can reconfigure the workplace and/or your employees’ work schedules to increase social distancing. Mark the perimeter on the floor of space that must be left clear of foot traffic, for example in reception areas. Avoid unnecessary gatherings. Minimize common touchpoints by, for instance, leaving certain doors open and reducing the use of shared tools and equipment.
Also consider whether you need to coordinate with your building management, tenants or others with whom you share space and/or cleaning responsibilities.
5. What personal protective equipment will you provide?
New York State guidance provides that, “Your business can only reopen when you are able to fully supply adequate protective equipment and to help protect the health and safety of your workers.” All businesses will likely be required to provide their employees with appropriate face coverings. Certain employers may also have to provide gloves. Each employer should consider how it can assist its employees in minimizing the risks associated with the particular workplace.
6. What is your cleaning and sanitizing plan?
Who in your business and building will be responsible for ensuring that proper cleaning and sanitizing is being done? Are you stocked with sufficient hand sanitizer, soap and tissues for your employees? Maintaining a clean and sanitized workplace is critical to employee safety.
Employers should also still require that employees observe infection control practices, such as regular handwashing and cough covering, in the workplace to prevent transmission of COVID-19.
7. How will you handle employees’ requests for leave or to continue working remotely?
Some employees may not be able to return to work for various reasons, such as illness or childcare responsibilities. Other employees may just be afraid to come back. Employers should think through these issues before reopening and consider how they will respond to these types of questions, ensuring that they treat similar situations consistently.
In some cases, employees may be entitled to paid or unpaid leave under a federal, state or local law, such as the Families First Coronavirus Response Act, Family and Medical Leave Act, New York Paid Family Leave, Act or the New York City or Westchester Earned Sick Time Act. Other employees may request leave or the ability to work from home as an accommodation for a disability, which will require the business to engage in an interactive process with the employee to determine if a reasonable accommodation can be provided without undue hardship. Some employees may just want to be reassured that the business will make appropriate efforts to keep them safe and others may not be willing to return to work under any circumstance because they do not want to put themselves or someone they live with at risk.
Employers must make sure they are familiar with all applicable federal, state and local laws that may govern these issues. Employers should also have a plan to require and maintain documentation from employees who refuse to return to work, which may impact an employee’s entitlement to unemployment benefits.
8. What is your plan for screening employees returning to work?
Before reopening, businesses must determine how they will screen their employees and other visitors to the workplace (e.g., questionnaires, temperature checks, testing). While employers are typically not permitted to subject employees to medical related inquires and exams, certain reasonable inquires and exams are currently permissible because an individual with the COVID-19 virus poses a direct threat to the health of others.
Employee questionnaires would include questions about (1) COVID-19 symptoms, (2) positive COVID-19 testing and/or (3) close contact with confirmed or suspected COVID-19 cases. Employers may specifically inquire about any COVID-19 symptoms that have been identified by public health authorities as associated with COVID-19.
For temperature checks, employers must determine if they will have employees do the check at home or when they arrive to the facility. If the temperature check is done by the employer, the employer must determine the logistics of the process and ensure employee safety. Of course, employers should keep in mind that some people with COVID-19 do not have a fever.
Employers must also keep in mind employees’ privacy rights with respect to their medical information. The Americans with Disabilities Act requires that all medical information about a particular employee be stored separately from the employee’s personnel file.
9. What written policies do you need to create and or update?
All businesses in New York, including essential businesses, must develop a COVID-19 Health and Safety Plan, outlining the ways the business intends to comply with the State’s guidance to safely reopen.
Employers should also review their handbooks and other policies to see if such policies should be updated or amended, including policies relating to remote work, travel, safety and leave. Employers that have not updated their handbooks recently should also review their policies for compliance with other applicable federal, state and local laws.
Employers should also consider what training they can provide employees to help them remain safe.
10. Who will be your point person for staying up to date on rules and handling employee complaints and concerns?
The only certain thing during this time of uncertainty is that it will continue to change. Employers should designate a point person to stay up to date on the most current information on maintaining workplace safety and any state and local requirements. Employees should also have an internal point person to whom they can address any questions or safety concerns.
This article was all about asking questions. We would also like to answer your specific questions. Please send your questions to Sara Kula at sdk@ddw-law.com with the Subject Line “FAQ” and we will prepare and share FAQs to help provide further guidance as New York moves Forward.