Insights

FAQs in Reopening Businesses and Returning Employees to Work After COVID-19

May 20, 2020 By L. Diane Tindall, Kyle R. Still

This comprehensive resource covers a number of topics related to reopening your business and returning your employees to work. Click any link below to jump directly to:

Government Orders and Guidance
Planning and Preparing the Workplace for Returning Employees
Communication with Employees
Issues with Employees Not Ready (or Willing) to Return to Work
Screening Employees Entering the Workplace
Complying With Governor Cooper’s Executive Order No. 138

1. Government Orders and Guidance

Where can I find information about government restrictions on opening my business after a closure related to COVID-19?

For North Carolina employers, Governor Cooper’s Executive Order No. 138 issued on May 5 for Phase 1 reopening of businesses may be found at https://files.nc.gov/governor/documents/files/EO138-Phase-1.pdf. You should also check your county and city websites for any additional information that may apply.

Where can I find guidance on workplace safety related to COVID-19?

The US Occupational Safety and Health Administration (OSHA) has published Guidance on Preparing Workplaces for COVID-19, which may be found at https://www.osha.gov/Publications/OSHA3990.pdf.

Where can I find government recommendations regarding best practices for avoiding spread of the virus in the workplace?

The US Centers for Disease Control (CDC) has released a series of publications, including an Interim Guidance for Businesses and Employers Responding to Coronavirus Disease 2019 which can be found at https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html.

2. Planning and Preparing the Workplace for Returning Employees

What should employers do to prepare for reopening their businesses?

According to CDC Guidelines, all employers should implement and update as necessary a plan that:

Is specific to that employer’s workplace;
identifies all areas and job tasks with potential exposures to COVID-19; and
includes control measures to eliminate or reduce such exposures.

Are there specific steps should an employer take in preparation for employees’ return to the workplace?

While there will be specific protocols that apply to certain types of businesses and the location and physical features of the workspace, general recommendations regarding safety and sanitation will apply to all businesses as they re-open. These include the following:

Review State and local government orders to determine if specific requirements apply to your business;
Determine if face masks/coverings are required per State or local government orders or are otherwise appropriate;
Procure necessary products and supplies, such as masks, gloves, personal protective equipment (PPE), soaps, disinfecting wipes and hand sanitizers;
Post signage regarding proper hygiene and sanitization, physical distancing, PPE guidance and information on virus symptoms and treatment;
Evaluate your business’s current cleaning and disinfecting requirements and enhance sanitation in terms of frequency, products and methods, especially in high traffic areas (See CDC Guidelines at https://www.cdc.gov/coronavirus/2019-ncov/community/reopen-guidance.html);
Ensure ventilation and water systems are clean and operating properly;
For customer-facing positions, consider installing barriers to protect those employees who will come in contact with the public;
If you cannot close common areas such as waiting rooms and break rooms, reconfigure them to provide for social distancing;
In areas where employees or customers will tend to congregate, mark off six foot lines to encourage social distancing; and
Consult with third parties who specialize in health and sanitation to inspect and provide guidance on making your workplace clean and safe.

What other measures can I take to reduce risk to my employees contracting COVID-19 on their return to work?

Consider a phased re-opening, reduced hours, staggered schedules, continued work from home arrangements and limited travel policies. If there will be clients or customers in your workplace, limit their numbers and reduce their exposure to employees and other clients and customers. Any measures that reduce person-to-person contact will reduce the risk of the spread of COVID-19.

My workspace is currently configured so that employees work within six feet of one another. Is this a problem?

Yes. According to CDC Guidelines, employers must alter their workspace to help workers maintain social distancing and physically separate employees from each other. This would include increasing the physical space between employees at the worksite by modifying the workspace.

3. Communication with Employees

What should I tell my employees about their return to work?

First, be sure to provide employees with sufficient lead time so that they can make arrangements for childcare, family member care, transportation to and from work and other adjustments in order to transition from staying/working at home to a return to work. Second, be sure to inform employees of changes to the workplace and new policies and procedures that have been put into place for their return to work. Especially let employees know about safety and sanitation protocols that will be instituted to protect them from an unnecessary risk of exposure to COVID-19. Finally, provide them with information about their pay and benefits, and any changes since they were last at work.

Should I solicit employee input?

You should talk with your employees about planned changes and seek their input. If they have specific concerns, openly discuss risks and steps that can be taken to mitigate those risks. In addition, employers should communicate important COVID-19 information to employees in order to protect them at work and at home.

What guidance or recommendations should I provide employees as they return to work?

The CDC recommends that employers educate employees about steps they can take to protect themselves at work and at home:

Advise employees to stay home if they are sick, except to get medical care, and to inform their supervisor if they have a sick family member at home with COVID-19;
Encourage employees to follow any new policies or procedures related to illness, cleaning and disinfecting, and work meetings and travel;
Encourage workers to wear a cloth face covering at work and especially in in public settings where other social distancing measures are difficult to maintain;
Train employees on the proper wearing, use and cleaning of face masks/coverings and PPE;
Ask employees to wash their hands often with soap and water for at least 20 seconds or to use hand sanitizer with at least 60% alcohol if soap and water are not available;
Advise employees to avoid touching their eyes, nose and mouth with unwashed hands;
Ask employees to cover their mouth and nose with a tissue when they cough or sneeze, or to use the inside of their elbow. Provide no-touch trash cans and ask employees to throw used tissues away and immediately wash their hands with soap and water or use hand sanitizer;
Encourage employees to practice routine cleaning and disinfection of frequently touched objects and surfaces such as workstations, keyboards, telephones, handrails and doorknobs;
Tell employees to avoid using other employees’ phones, desks, offices or other work tools and equipment when possible and to clean and disinfect them before and after use; and
Request that employees practice social distancing by avoiding large gatherings and maintaining distance (at least 6 feet) from others when possible.

4. Issues with Employees Not Ready (or Willing) to Return to Work

What if an employee refuses to return to work because of a general fear that he will contract the virus?

Employers must comply with the “General Duty Clause” under the Occupational Safety and Health Act (OSHA) which requires employers to guarantee their employees a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” Under OSHA, a worker can refuse to work if he believes that workplace conditions could cause him serious imminent harm. However, this is a very high standard that will be difficult to meet if the employer has taken reasonable and necessary precautions at the workplace, such as requiring social distancing and following CDC sanitation guidelines. Therefore, unless an employee can show objectively that he is in imminent danger, OSHA is unlikely to protect that worker, and his employer may terminate his employment if he refuses to return to work.

If more than one employee feels their workplace is unsafe, and they decide to not go into work for that reason, they will be essentially going on strike for health and safety reasons and will be protected for engaging in “concerted activity” under the National Labor Relations Act (NLRA). However, as with a complaint under OSHA, the employees’ concerns must be objective and specific, and not just a generalized fear of contracting the Coronavirus.

Employers facing employees who refuse to return to work due to a generalized fear of COVID-19 should discuss with the employee the measures being taken by the employer to make the workplace safe, and attempt to address any specific concerns in order to accommodate the worker if that can be done without jeopardizing business operations. However, if the employee is employed “at will,” most employers may terminate an employee who refuses to return to work, subject to the exceptions discussed below.

What about an employee who refuses to return to work due to the employee’s physical or mental disability?

The employer should treat this response as a request for a reasonable accommodation under the Americans with Disabilities Act (ADA). The employer may verify that the employee has a disability and inquire whether the disability puts the employee at higher risk if he returns to the workplace at this time. The CDC has identified several medical conditions, including chronic lung disease and heart conditions, that put individuals at higher risk. There also can be a situation where the current pandemic would exacerbate an existing physical or mental disability. The employer should engage in what is called the “interactive process” with the employee to attempt to gain information about the employee’s work restrictions and to explore whether accommodations other than continued absence from the workplace would allow the employee to perform his essential job functions. The employer may refuse to provide an accommodation that would pose an undue hardship on the employer.

The employer should also consider whether the employee’s request not to return to the workplace is a request for leave under the Family and Medical Leave Act. Covered employers are required to provide up to twelve weeks of unpaid leave if an employee is unable to work due to a serious health condition.

What information can an employer request from an employee who says he cannot return to work because of a disability?

If the disability is not obvious or already known by the employer, the employer may ask questions or request medical documentation to determine whether the employee has a “disability” as defined by the ADA (a physical or mental impairment that substantially limits a major life activity, or a history of a substantially limiting impairment). An employer may also ask questions or request medical documentation to determine whether the employee requires an accommodation due to the disability. Possible questions for the employee may include: (1) how the disability creates a limitation, (2) how the requested accommodation will effectively address the limitation, (3) whether another form of accommodation could effectively address the issue, and (4) how a proposed accommodation will enable the employee to continue performing the “essential functions” of his job. The employee’s choice of accommodation should be taken into account; however, if there are two possible reasonable accommodations, and one costs more or is more burdensome than the other, the employer may choose the less expensive or burdensome accommodation as long as it is effective.

What if the employee says that he cannot return to work because he lives in the same household with someone who has a disability and who is at greater risk of severe illness if the employee contracts COVID-19?

Under the ADA, an employee only has a right to request a reasonable accommodation for his own disability. Here, the employee does not have a disability; the member of his household does. The employer may consider an accommodation, but is not required by the ADA to do so. In addition, if the employer accommodates one employee due to concerns about a household member, it will have to provide similarly-situated employees with the same accommodation.

5. Screening Employees Entering the Workplace

Are employers permitted to test employees for COVID-19 before allowing them to return to the workplace?

Generally, the Americans with Disabilities Act (ADA) prohibits employers from making disability-related inquiries or mandating medical examinations unless they are “job related and consistent with business necessity.” However, on April 23, 2020, the Equal Employment Opportunity Commission (EEOC) updated its COVID-19 guidance for employers, confirming that employers may lawfully test employees for the disease before allowing them to return to work, reasoning that an employee with the disease will pose a direct threat to others in the workplace.

The EEOC further advises that employers should make sure the tests are accurate and reliable. For example, employers should review guidance issued by the CDC or other public health authorities, as well as the U.S. Food and Drug Administration, for information and updates regarding which tests are considered safe and accurate. Employers should also be aware of the rates of false positives or negatives associated with a particular test. Finally, the EEOC notes, employers should keep in mind that employees who test negative can still contract the virus after testing.

What information may an employee require when an employee calls in sick?

During the COVID-19 pandemic, employers may ask such employees if they are experiencing symptoms of COVID-19, including symptoms such as fever, chills, cough, shortness of breath or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.

May an employer screen its employees for COVID-19 when they report to work?

Yes. Common screening mechanisms include temperature checks and written questionnaires. Employees may also conduct visual inspections of employees and require employees to “self-report” COVID-19 symptoms.

The Equal Employment Opportunity Commission (EEOC) and other governmental bodies generally permit temperature screening of employees for COVID-19. Temperature checks should be conducted at the beginning of the employee’s workday and at random and/or set times during the workday and/or after observation of an employee exhibiting COVID-19 symptoms. Temperature checks should be performed in a manner that maintains the privacy of the results and also takes into account social distancing measures for those waiting to be tested.

Questionnaires may seek information such as whether the employee is experiencing symptoms of COVID-19 and whether they have come into close contact with anyone who tested positive for COVID-19 or has COVID-19 symptoms (including a member of their household), and whether they have traveled to, or come into close contact with anyone who has traveled to, a known COVID-19 hotspot. (A sample questionnaire from the North Carolina Department of Health and Human Services can be found here Symptom-Screening-Checklist-ENGLISH.) Questionnaires should be brief and designed to elicit only “yes” or “no” responses. If the employee responds “yes” to any of the questions, designated personnel should follow-up with the employee, including asking any necessary additional questions, to make a determination of whether the employee would pose a direct threat to health or safety in the workplace. The screening should not go into unnecessary detail but should be narrowly focused on assessing the COVID-19 threat.

What if an employee refuses to be tested or screened?

Before beginning a screening program, employers should decide what, if any, consequences will result if an employee refuses to participate in the screening measures and communicate those consequences to employees in advance. The individual conducting the screening should be trained on how to respond to any concerns raised by employees. Before disciplining an employee for a refusal, the employer should determine the basis of the employee’s refusal, including whether he is objecting on religious grounds or because he requires an accommodation. In addition, employers should be certain that they apply these screening requirements and consequences consistently across the workforce to avoid any claim of discrimination.

What should an employer do if the employee tests positive, has an elevated temperature or otherwise shows symptoms of or exposure to COVID-19?

Employers should have available a designated private location to serve as an isolation area. If the results from an employer’s COVID-19 screening process indicate that an employee may have COVID-19 or has been exposed to the virus, whether at the beginning of a shift or during the workday, the employee should be discreetly directed to the isolation area for further inquiry. Further questioning should ascertain whether the individual is well enough to commute home safely or whether immediate medical assistance is needed. Any personnel in contact with the employee should wear appropriate PPE, and the isolation area should be sanitized following the individual’s departure.

May an employer require an employee with COVID-19 symptoms to stay at home or go home if he reports to work?

Yes. The CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace. The ADA does not interfere with employers’ following this advice.

If an employee tests positive, has been in contact with someone who has the virus or has COVID-19 symptoms, what may an employer tell the employee’s co-workers?

An employer should notify co-workers and customers who were in contact with an employee who has tested positive for COVID-19 without including the employee’s name or other information that might identify them. Employers should strictly limit notifications to co-workers and customers who may have legitimate reasons to be concerned for their own health. Similarly, if an employee notifies you that they are experiencing coronavirus signs, your response should be the same: notify co-workers and customers who were in close proximity to the affected employee that a colleague has symptoms that may indicate COVID-19 but do not disclose any personally identifiable information. However, an employer may disclose the name of an employee to a public health agency when it learns that the employee has COVID-19.

May an employer require a doctor’s note certifying an employee’s fitness for duty when he returns to work?

Yes. Such inquiries are permitted under the ADA either because they would not be disability-related or, if the pandemic were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees. As a practical matter, however, doctors and other health care professionals may be too busy due to the COVID-19 pandemic to provide fitness-for-duty documentation. Therefore, the EEOC suggests that new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have COVID-19.

6. Complying With Governor Cooper’s Executive Order No. 138

When was Executive Order No. 138 issued and to which businesses does it apply?

On May 5, 2020, North Carolina Governor Roy Cooper issued Executive Order No. 138 (the “Order”) to outline the Phase 1 reopening of the State’s economy. It applies to all businesses and individuals in North Carolina.

How long will the Order in effect?

This is still to be determined. Per the terms of the Order, Phase 1 started at 5:00 PM on Friday, May 8, 2020 and will extend at least until 5:00 PM on May 22, 2020. That being said, the Order notes that it may be repealed, replaced or rescinded by a subsequent Executive Order.

What is new and what remains the same in the new Order?

The Order allows a number of new things, including:

Eliminating the distinctions between essential and non-essential businesses;
Allowing most retail businesses to open at fifty percent of its allowable capacity, provided they comply with certain additional requirements described below;
Allowing childcare facilities to open for working families; and
Encouraging all North Carolinians to wear cloth face coverings when outside their homes in an effort to protect others.

The Order does not change certain things from prior Executive Orders, including:

Continuing to keep the prior stay at home order in place;
Limiting mass gatherings to less than 10 people;
Encouraging telework where possible;
Keeping certain businesses closed to the public;
Requiring social distancing, hand hygiene, and other safety practices; and
Limiting visitation to long-term care facilities.

What businesses must remain closed under the Order?

Although most businesses may reopen if they can maintain certain social distancing requirements, the Order requires some businesses to remain closed. These specifically include restaurants for dine-in services (although they may continue to provide drive-through, take-out and delivery), personal care and grooming businesses (such as barber shops, hair salons, and nail salons), health clubs and fitness centers (including gyms, yoga studios, martial arts facilities, indoor trampoline businesses, and rock-climbing facilities), and entertainment facilities (such as concert venues, movie theaters, bowling alleys and pools).

What requirements must retail businesses follow under the Order?

Unless the Order specifically keeps a business closed, businesses are allowed to reopen. Retail businesses must follow certain requirements, however, to reopen. These include the following:

Directing customers and staff to stay at least six feet apart except at the point of sale;
Limiting occupancy to fifty percent of the business’s stated fire capacity;
Marking six feet of spacing in lines at the point of sale and in other high traffic areas;
Performing frequent cleaning and disinfection of highly touched areas;
Providing hand sanitizer stations;
Conducting daily symptom screenings of employees before they enter the workplace;
Immediately sending symptomatic employees home after their screenings;
Having a plan to isolate an employee immediately if he or she develops symptoms; and
Posting signage at the main entrances of the business related to the facility’s social distancing and to request people who are symptomatic from not entering.

The Order also strongly recommends retail businesses take the following steps:

Direct employees to stay at least six feet away from each other and customers at all times to the greatest extent possible;
Provide designated times for senior citizens and high risk populations to access services; and
Develop and use systems allowing online, email or telephone ordering, and providing no contact curbside or drive-through pickup and contact free check out.

Finally, the Order strongly encourages high volume retail businesses (such as grocery stores and pharmacies) to install acrylic or plastic shields at cash registers, to mark designated entry and exit points in a clear fashion, and to provide assistance with routing throughout the store.

What does the Order allow other businesses to do?

Unless specifically closed by the Order, all businesses in North Carolina are permitted to operate. While certain restrictions apply (as partially referenced above), these restrictions only apply to specifically described businesses. The Order other “strongly encourage[s]” businesses to adopt the following measures:

Continue to promote telework and limit non-essential travel whenever possible;
Promote social distancing by reducing the number of people coming to the office, by providing six (6) feet of distance between desks, and/or by staggering shifts;
Limit face-to-face meetings to no more than ten (10) workers;
Promote hygiene, including frequent hand-washing and use of hand sanitizer;
Recommend workers wear cloth face Coverings;
Provide workers with face Coverings and provide information on proper use, removal, and washing of cloth face Coverings (The Order notes that a face covering functions to protect other people more than the wearer);
Make accommodations for workers who are at high risk of severe illness from COVID‑19, for example, by having high-risk workers work in positions that are not public-facing or by allowing teleworking where possible;
Encourage sick workers to stay home and provide support to do so with a sick leave policy;
Follow the CDC guidance if a worker has been diagnosed with COVID-19;
Provide workers with education about COVID-19 prevention strategies, using methods like videos, webinars, or FAQs; and
Promote information on helplines for workers such as 211 and the Hope4NC Helpline.

What impact does the Order have on childcare facilities?

The order allows childcare facilities to open to care for the children of individuals who are working, who are seeking employment, or are homeless or receiving child welfare services.

What should we expect for Phase 2 of North Carolina’s reopening?

Guidance from the Governor’s office makes clear that Phase 2 will not immediately start at the end of this Order. The Governor will use data related to the rate of COVID-19 infections and deaths to determine if the State is ready to move to Phase 2. When the State is ready to move into Phase 2, more businesses likely be allowed to reopen.