Re-Opening FAQ’s for Employers
We have tried to provide general information in response to some of the most common questions we are currently receiving from employers, but the specifics of your workplace may require additional consideration and analysis.
Please contact us for personalized legal advice as you return your employees to work.
WHAT SAFETY MEASURES DO I NEED TO IMPLEMENT IN MY WORKPLACE TO LIMIT THE SPREAD OF COVID-19?
- Employers should pay attention to governor mandates and executive orders, the Centers for Disease Control and Prevention (CDC) guidance, the Occupational Safety and Health Administration (OSHA) guidelines and Equal Employment Opportunity Commission (EEOC) guidelines. These sources of information are being regularly updated.
- Please make use of the CDC workplace decision tree.
- In addition, the U.S. Chamber of Commerce has issued a state by state guide to reopening that is very useful and being updated regularly.
WHAT BUSINESSES ARE PERMITTED TO BE OPEN AND OPERATIONAL?
- Currently, multiple executive orders in New Jersey address the types of businesses that may be open and operational.
- Those businesses that are able to be open are required to allow employees to work from home where possible, prohibit unnecessary worksite visitors and meetings, and to adhere to social distancing guidelines, mandate the use of personal protective equipment unless medically exempted, and operate with minimal staffing to maintain critical operations.
- There is no anticipated expiration of these executive orders at this time and the attorney general’s office is committed to enforcing them.
- In New York, any business that is not deemed essential under Governor Cuomo’s New York on PAUSE executive order may not have staff on-site.
- Essential businesses that are allowed to have staff must maintain limited staffing for only essential functions and must utilize work-from-home arrangements to the extent possible.
- Employees who are permitted on-site must adhere to social distancing guidelines to the extent possible.
- The current New York on PAUSE executive order remains in effect until May 28, 2020, however, some regions in the state are now permitted to begin a phased reopening, following the state’s guidelines.
In addition to the state executive orders, the Occupational Safety and Health Administration (“OSHA”) has released guidance for workplaces which may be helpful as the state executive orders expire and individuals are permitted to return to work. While the guidance is not law, it does provide some best practices.
- All businesses should develop workplace policies related to cleanliness and hygiene, encourage employees to stay home if they are sick, adhere to state and federal COVID-related sick leave requirements, and consider making environmental and scheduling changes to reduce the likelihood of exposure for employees.
- Environmental changes may include things like increased ventilation and airflow or physical barriers between work stations.
- Scheduling changes may include use of alternating shifts to allow appropriate distance between employees.
AM I REQUIRED TO PROVIDE MY EMPLOYEES WITH HAZARD PAY?
- Hazard pay is additional pay for performing dangerous work, typically paid as a percentage increase (such as a 10% hourly increase) or a lump sum (such as $250 per month).
- Employers may choose to make hazard pay available for work that involves “extreme physical discomfort or distress, particularly if protective equipment will not mitigate the danger involved,” but it is not required by law. Rather, the employer has the ability to determine whether to offer hazard pay and the conditions in which it is offered.
CAN I CHANGE JOB DESCRIPTIONS TO REQUIRE MY EMPLOYEES TO HELP WITH CLEANING AND SANITIZING OUR WORKPLACE?
- Companies can require employees to participate in appropriate cleaning and sanitizing of the workplace.
- Companies should clearly communicate their expectations in this regard and be sure that they are requesting this work in a non-discriminatory manner (for example, not only asking women to clean), but otherwise, are allowed to require employees to perform these workplace tasks.
WHAT CAN I DO IF AN EMPLOYEE REFUSES TO USE PERSONAL PROTECTIVE EQUIPMENT?
- If your business is operating, whether currently as an essential business, or in the future as executive orders allow it, and an employee refuses to wear personal protective equipment, such as a face mask, you should consider the reason for the refusal.
- If there is an underlying medical or religious reason, you should treat the refusal as a request for accommodation.
- If, however, the refusal is not for a medical or religious reason, you can consider the refusal as a violation of applicable workplace code of conduct policies and procedures and address it under those policies.
IF MY EMPLOYEE TESTS POSITIVE FOR COVID-19, AM I REQUIRED TO CLOSE?
No. You are not required to close.
WHAT AM I REQUIRED TO DO IF MY EMPLOYEE TESTS POSITIVE FOR COVID-19?
- Identify all individuals who worked in close proximity (within six feet) for a prolonged period of time (more than a few minutes) with them in the previous 14 days.
- Send those identified employees home to self-monitor for symptoms (fever, cough, shortness of breath).
- Do not identify the infected employee by name.
- Close off the infected employee’s workspace for as long as possible before cleaning and disinfecting.
- Clean and disinfect following CDC guidance, focusing on frequently touched surfaces and using approved cleaners.
- Cleaning staff should use personal protective equipment, including disposable gloves and gowns or other appropriate covering.
CAN I TAKE THE TEMPERATURE OF MY EMPLOYEE BEFORE THEY WALK IN THE BUILDING?
Yes. While this is typically not allowed, during the pandemic, the EEOC has relaxed the regulations of some employer-conducted medical exams. You should:
- Be mindful that an employee may not be exhibiting symptoms, including fever, though they are infected with COVID-19.
- Assume that the individual taking temperatures will be exposed and take precautions, including wearing a face shield and personal protective equipment.
- Use temperature taking methods which do not come into contact with bodily fluids.
WHAT MEDICAL QUESTIONS AM I ALLOWED TO ASK EMPLOYEES BEFORE THEY COME TO WORK EACH DAY?
- You are allowed to inquire into an employee’s symptoms.
- Keep these inquiries confidential. The most common symptoms of COVID-19 are fever and dry cough.
- You can make inquiries into symptoms which would distinguish an employee’s symptoms between the common cold, seasonal influenza, or COVID-19.
CAN I REQUEST WRITTEN DOCUMENTATION THAT AN EMPLOYEE IS MEDICALLY CLEARED TO RETURN TO WORK?
Yes, you are permitted to require a medical provider’s note that an employee is fit to return to work. The employee should consult and follow the advice of their healthcare provider regarding the length of time to stay at home.
Current guidance is that an employee with symptoms should:
- Remain at home for three days without a fever (achieved without medication) if they don’t develop any other symptoms.
- If they develop other symptoms, they should remain home for:
- At least seven days from the initial onset of the symptoms, and
- Three days without a fever (achieved without medication).
HOW LONG CAN AN EMPLOYEE BE OUT BEFORE I CAN REQUEST MEDICAL DOCUMENTATION?
- New Jersey’s Earned Sick Leave law allows an employer to request documentation for an absence lasting more than three days.
WHAT ARE SOME ADDITIONAL RESOURCES THAT ARE AVAILABLE TO GUIDE EMPLOYERS?
U.S. Department of Labor FFCRA FAQs
Centers for Disease Control and Prevention
New Jersey COVID-19 Information Hub