As Massachusetts progresses through its reopening plan from the COVID-19 Pandemic, workplaces throughout the state are evaluating how to reopen their offices for employees to "return to work." These evaluations raise many questions. As part of Mass TLC’s Head of Talent Discussion, Cheryl Barbato spoke with Stephen Melnick – Labor and Employment Attorney at Littler to answer many of the pressing questions that employers may have. Here are summarized takeaways from Stephen in that discussion.
Please provide us an overview of Massachusetts regulations and mandates that have been put in place for "returning to work."
- On June 22, 2020 Massachusetts entered phase 2.2 of its reopening plan. For employers that means you can now have 50% occupancy in your workplaces. Prior to that it was 25%.
- You must keep six feet of separation between workplaces or you must have partitions (at least 6 feet high) between people.
- You must have signs and information posted throughout your workplace informing people on your policies.
- Face coverings are required in "public" areas where groups of people are gathered.
- Provide hand washing stations, either soap and water or hand sanitizer.
- Provide an office cleaning at least daily or multiple times per day if possible.
- Provide a training, that shows employees how to be safe and how to avoid infection.
- Put a formal prevention plan in place. A template for this and the signs that you need to post are available on the state website.
What should companies do to avoid legal repercussion related to COVID-19?
- Be sure you’re compliant with all the state law requirements and guidelines that have been put in place. The state website will tell you exactly what is required.
- The department of public health, the local boards of health and the Attorney General's labor standards division are all empowered to enforce these standards and guidelines.
- While there won’t be any kind of random audits, a complaint from an employee or a customer will result in a letter or a phone call from one of those agencies. The state has said they will try to work with you and provide warnings rather than immediately shut things down. Then they will begin levying fines. If you are still not in compliance, they will move to a shutdown order.
If an employee is uncomfortable with returning to work, what advice would you give to employers?
- One thing to consider is that there is the “floor” of what the law requires and then there are the HR and PR considerations. The fact is the law does not require much. But, as an employer, you want to do more than what the law requires.
- If someone has a disability, under the ADA or state law (condition that limits a major life activity), you have to provide them with accommodation.
- For example – if you have an employee that is recovering from cancer treatments or has Emphysema, you should talk to the person and find out what accommodation would make sense for them. That accommodation might be to continue working from home, or it may be having their own separate office.
- People who don't have an underlying medical condition, for instance, people who are older, there is no requirement under the law that you have to provide an accommodation.
- But, if you do have people who are older and are concerned, it's highly recommended that you try to figure out a way to work things out with that person and make them feel comfortable.
- Under the law, you can provide benefits for older people (65 or older) that you don't give to younger people.
What obligations do employers have with employees who are unable to find childcare?
- The Federal Families First Response Coronavirus Act allows for up to 12 weeks of paid leave to full time employees who are caring for a child whose school or place of care is closed for reasons related to COVID-19 (two weeks of paid sick leave followed by up to 10 weeks of paid expanded family & medical leave) at 40 hours a week This is for companies that have 500 or fewer employees.
If an employee has an underlying medical condition and is reluctant to return to work for that reason – should you ask for medical documentation on this condition?
- Legally, the ADA requires that employees who say they have health problems, provide a form of documentation.
- You want to be flexible and give the person the time to provide that based on the current state of doctor’s visits.
What responsibilities do employers have regarding providing a safe mode of transportation for commuting?
- As an employer you don’t have an obligation toward how an employee gets to work. If the employee has apprehension of taking public transportation, see if you can work with them provide them with a stipend parking or something along those lines for a few months.
- That might be the better cost-effective option, versus them not working and being put on unpaid leave.
Are there disciplinary actions that can be taken or should ever be taken to enforce compliance if an employee is unwilling to return to the office?
- Firstly, a common situation in MA is that employees are saying “I'm making more money now on unemployment than I was making before.” If that's the circumstance, you as an employer, have a hotline/email address that you can use for the unemployment agency where you can report people who are refusing to come to work, because they want to stay on unemployment.
- For the more general issue of employees who simply don't want to come back to the office, see if you can work with the person within reason. Find out what specific things they have concerns about and address them. If you've done everything you can to ensure that the workplace is safe and the person is being unreasonable, apply your standard attendance policy and address it like any other refusal to come to work. You can say “If you don't come in x days in a row (according to your policy), we will consider that your resignation.”
Are employers obligated to conducted testing and screening of employees?
- Part of the guidelines for reopening is to make sure that you are screening employees for symptoms before they enter the workplace.
- There are apps that people can download and use to confirm that they are not experiencing COVID-19 symptoms.
- One option is to require home temperature screenings, in doing so you must trust that your employees are following through.
- Another option is to designate a person who employees go to every morning for their screening. This person should be given protective equipment (a mask, eye protection and gloves, a smock).
Who should be responsible for ensuring compliance of these policies in a company?
- There should be a point person or a small group that's appointed that you can trust to handle this. It could be done by someone in HR, Security/Facilities or another department that make sense.
What should be done if an employee tests positive for COVID-19?
- There are different tiers depending on the situation. If the person, has tested positive for COVID-19 and they've been in the office over the past four days, you must do a deep cleaning of the office and shut down.
- Either bring in a service or do the cleaning yourself. There are guidelines out there on the state site and on the CDC site about how to do that kind of thorough deep cleaning. Once you've finished with the cleaning, you can reopen.
- If somebody tests positive, but they haven't been in the office in the last four days. You do not have to do the full, deep cleaning. The current recommendation is people who test positive should quarantine for 10 days and 72 hours without symptoms.
Should you identify the individual who tested positive?
- If the person is symptomatic, you're required to do contact tracing, meaning you sit down with the person and figure out who they have been in close contact with in the past four days. Close contact is either that they're within six feet of the person for a prolonged period - ten to fifteen minutes, or if there's direct contact that occurred.
- If/when you notify those people, let them know they were in close contact with someone who is symptomatic and they need to quarantine for 14 days.
- You cannot disclose the name of the person who tested positive to any other employees. You must keep that confidential. You could say it was someone in a department or something of that nature, as long as it doesn't reveal the person.
- Employers should disclose the names of people that tested positive to the local board of health.
Should candidate interviews continue to be conducted virtually even if staff members return to their offices?
- You should limit contact with people as much as possible. If you can still conduct remote interviews – continue to do so. You don’t want to be in a situation where a candidates that's interviewing tests positive and you must contact trace everyone and all your hiring managers need to quarantine for 14 days.
Can you ask candidates if they would be comfortable working in the office during the interview?
- Yes, but you want to be careful that you're not getting into underlying medical conditions. The more appropriate question would be, “Are you comfortable coming in, with or without any reasonable accommodations?”
- You can make sure that the person is not and has not had the positive for COVID-19. If the person does test positive, For COVID-19, you can require that they clear up symptoms, just like any other person who tested positive.
If a candidate is not comfortable working in the office, and they are not offered the job, are you opening yourself up to potential legal action?
- There is certainly a potential. It’s best to ask your questions carefully and make it clear you’re not inquiring about the medical conditions, but want to make they understand this what you’re doing to provide a safe environment and this is our attendance policy.
What are the main things to be focused on as a highest priority to get in order?
- Make sure that you're complying with all the state law requirements from the reopening MA websites.
- Make sure you're treating people consistently and fairly - discrimination laws still apply here.