Returning to Work in the Age of Covid-19

With Ohioans returning to work over the coming weeks, employers must take added steps to ensure the workplace is safe for employees and consumers alike. The Ohio Department of Health provides information on its website regarding the restart Ohio campaign—Responsible RestartOhio. The site provides employers with both suggested and mandatory protocols for restarting their workplace. These include:

  1. Face Coverings: Employers must require face coverings for employees and recommend them for client/customers at all times. If employees do not have a face mask, the employer should provide one.

 There are some exceptions to this requirement, but written justification must be provided upon request:

    • An employee in a particular position is prohibited by a law or regulation from wearing a face covering while on the job
    • Wearing a face covering on the job is against documented industry best practice
    • Wearing a face covering is not advisable for health purposes
    • If wearing a face covering is a violation of a company’s safety policies
    • An employee is sitting alone in an enclosed workspace
    • There is a practical reason a face covering cannot be worn by an employee
  1. Daily Health Assessments: Employers and employees must perform a daily self-evaluation to determine if “fit for duty.” We have prepared a daily certification sheet employers can use to document the individualized assessment has been conducted by each employee prior to starting the work day. If a signed document is not practical for your workplace, self-assessments can be documented electronically. The EEOC guidance also expressly permits temperature checks during the COVID-19 pandemic, should the employer choose to check temperatures at the start of a workday or shift.
  1. Good hygiene: By this point, most individuals are well aware of what this means, but it still advisable to hang signs and reminders in common areas to wash and/or sanitize hands and maintain social distancing. Make soap and/or sanitizer available for employees and customers, and mark “standing spaces” 6 feet apart where social distancing may be necessary.
  1. Clean and sanitize: All work spaces and common areas must be cleaned and sanitized on a regular and recurring basis.
  1. Limit capacity and continue distancing: the State asks employers to establish a maximum capacity of 50% of the fire code in any space to assist with social distancing. Employers should consider making physical changes to existing work spaces to reduce exposure and separate employees. This may include reconfiguring spaces or creating protective barriers between employees or between employees and customers/vendors. To the extent possible, employers should prohibit sharing of equipment and other devices. Where appointments can be used to limit congestion, it is advisable. To the extent the functions of a certain position permit employees to work from home or stagger their schedules, this too is recommended. Employers should limit gathering within common spaces in the office and propose the use of teleconferencing and video conferencing where possible.

In short, social distancing remains a requirement in public and in the workplace, unless and until State orders change.

What news laws remain in place?

As most employers are well aware, new legislation was implemented during the Covid-19 pandemic to address employee leave and other areas impacted by the Covid-19 pandemic. This included the Families First Coronavirus Response Act, and its component parts, the Emergency Family Medical Leave Act and the Emergency Paid Sick Leave Act. Our Coronavirus page has information regarding the new laws, including fact sheets outlining each law, as well as leave request and verification forms pertaining to each.

What is the employer’s responsibility if someone in the workplace tests positive for Covid-19?

  1. Immediately report it to the local health department.
  2. Work with the local health department to identify potentially exposed individuals and to help facilitate appropriate communication and contact tracing.
  3. Shut down the work area, shop, floor, etc. to allow for deep sanitation if possible.
  4. Professionally clean and sanitize the location.
  5. Reopen in consultation with the local health department.

 Remind employees that their privacy will be protected, but if an employee tests positive, the employer (1) needs to know; (2) needs to disclose it to the health department; and (3) may disclose to others in the workplace that they may have been exposed to the virus.

Can employers test for Covid-19?

Under the Americans with Disabilities Act (“ADA”), disability-related inquiries or medical examinations of current employees are limited to fitness for duty inquiries and other inquiries that are “job-related and consistent with business necessity,” including to determine if an employee will pose a “direct threat” of harm due to a medical condition. Under recent Equal Employment Opportunity Commission guidance, the Covid-19 pandemic creates a sufficient risk to permit widespread testing based on the direct threat standard. Employers may ask certain disability-related questions and require medical testing during the Covid-19 pandemic without violating the ADA. However, individual employee privacy must still be protected, as with any other ADA-related concern.

In Sum, Be Prepared

Engage in active planning.

Review the physical set-up of your workplace.

Provide appropriate personal protective equipment/masks to all employees who do not already have their own.

Look at staggering your employees’ schedules to minimize overcrowding and close contact.

Review and update any employee leave policies, handbooks, etc. to cover Covid-19 related leave. Implement new protocol to ensure all employees entering the workplace are healthy.

Communicate with your employees, clients/customers, and the department of health, if needed, regarding your plan for ensuring a safe workplace.

Continue to follow recommendations from the CDC, the State, and your local health department.

Contact us if you have specific questions or if any issues arise.