Returning to Work, Navigating the Unknown

As schools, colleges and sports slowly return and employees begin returning to the workplace, employers are continually faced with heightened issues of balancing productivity with safety and liability concerns. While many uncertainties remain, federal and state agencies have given us guidance on how best to navigate employees returning to work. These agencies include the Federal Center for Disease Control (CDC) and the Federal Occupational Safety and Health Administration (OSHA), along with state and local governments.

The Ohio Department of Health issued guidance at the end of July, reminding employers to evaluate sick leave policies and to remain flexible in allowing sick employees to stay home to care for themselves, children, or other family members. Employers are encouraged to separate employees with any respiratory symptoms and reinforce messages asking employees to stay home when sick. At the workplace, employees should provide protection supplies such as soap and water, hand sanitizer, tissues, and no-touch disposal receptacles. The Department of Health also advises employers to frequently perform enhanced environmental cleaning of commonly touched surfaces. 

While the steps and guidance outlined by the Ohio Department of Health offer common sense solutions, employers should be vigilante in implementing these published guidelines. The vigilance is both for the protection of returning employees and customers, but also to avoid accusations of noncompliance and potential liability for not following this very public written guidance.

OSHA has also given employers a three phase approach to reopening workplaces. For each phase, employers should develop and implement policies and procedures that address preventing, monitoring for, and responding to any emergence or resurgence of COVID-19 in the workplace. OSHA also incorporates basic hygiene, social distancing and identification and isolation of sick employees. OSHA then provides the following phases:

  • PHASE 1: Employers should consider making telework available, when possible and feasible with business operations. Consider limiting the number of people in the workplace in order to maintain strict social distancing practices. Where feasible, accommodations (i.e. flexibilities based on individual needs) should be considered for workers at higher risk of severe illness, including elderly individuals and those with serious underlying health conditions. Employers should also consider extending special accommodations to workers with household members at higher risk of severe illness. Non-essential business travel should be limited.
  • PHASE 2: Employers continue to make telework available where possible, but non-essential business travel can resume. Limitations on the number of people in the workplace can be eased, but continue to maintain moderate to strict social distancing practices, depending on the type of business. Continue to accommodate vulnerable workers.
  • PHASE 3: Businesses resume unrestricted staffing of work sites. 

OSHA’s return to work guidance also asks employers to assess and determine potential sources of exposure as well as following CDC guidelines for self-isolation and returning to work after illness or exposure to someone with COVID-19.

With this guidance, however, employers must still be cautious of employees’ privacy when it comes to their personal health. Self screening for symptoms, temperature checks, testing and any other medical information received to maintain a safe workplace must remain confidential in order to protect the employee’s privacy. As always, employers must take steps to both protect the employees’ health and privacy.  

As with any employee/employer legal questions, answers will depend on the specific facts at issue. Please consult a legal professional for a more direct and specific inquiry.

This article should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer on any specific legal questions you may have concerning your situation.

Barnes & Thornburg LLP is a large, full-service law firm that seeks to take a more entrepreneurial and cost-effective approach both to client service and its own business.

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