Key Takeaways | Preparing Your Responses: How to Tackle Opening Day Obstacles - McDermott Will & Emery

Key Takeaways | Preparing Your Responses: How to Tackle Opening Day Obstacles


The COVID-19 pandemic has put unprecedented strain on organizations of all sizes across all industries. The uncertainty of the “new normal” is leading some employers to consider extreme, and often unnecessary, new policies in anticipation of the eventual return to work. To properly navigate the complexities of these novel COVID-19 employment issues, you need innovative but practical solutions.

In response to the challenges that employers now face, McDermott developed a six-part webinar series that will take a deep dive into all of the issues at stake–from workplace safety to employee privacy, as well as strategies to mitigate risk and respond to the inevitable surge in litigation. By the end of our program, you will possess the tools necessary to bring actionable solutions back to your organization and protect your most critical assets: people and reputation.

The fourth module in our toolkit focuses on preparedness for the opening-day obstacles you are likely to face as you bring your employees back to work.

View the full webinar here.

In Depth

1. As you plan for opening day at the workplace, remember that there is no one-size-fits-all solution. Be rational and purposeful as you put together your preparedness plan and have clear documentation and a communication plan ready. Your reopening will depend on a number of factors, including industry, geography and number of locations, and company culture. Some employers are taking the most conservative approach and applying it across the board to multiple locations, while others start with a baseline and then make local adaptations to comply with specific guidance from the state or local government. Whatever approach you take for your business, communicate any policy changes in advance to both your workforce and your customers to ensure transparency, and do so in a clear and concise way. Explain the new policies and why you are implementing them, as well as how they will be enforced and any disciplinary action for non-compliance so there is no confusion on Day 1. It may also be helpful to designate someone within your organization to be a conduit of information from the EEOC, CDC, OSHA and state and local governments to better prepare for any changes that need to be made to your policies due to updated safety guidelines or changes to state and local phased opening guidance.

2. Training employees before they return to work on any new COVID-related policies and protocols is a critical step in the reopening process. Information and communication are key to ensuring a safe and smooth return. In an informal poll of our webinar audience, almost 75% of respondents indicated that they are planning to conduct employee training prior to reopening. Leverage technology to hold virtual training sessions, or record training videos to distribute via email. In some cases, you may be able to host an in-person training for a small group but follow appropriate social distancing guidelines and remember that any training time is compensable. Training should be customized to address different audiences, for example, separate sessions for HR, managers/supervisors, and frontline non-exempt employees. Managers should be trained on how to handle employee complaints, respond to employees with COVID-19 symptoms and handle employees who were diagnosed with COVID-19 when they are ready to return to work. All employees should be trained on new safety protocols and requirements, including social distancing, face coverings, temperature, symptom screenings in addition to revised sick leave and attendance policies, and the process to report any safety issues. Consider  creating an acknowledgement or consent form requiring employees to affirm notice and compliance with these new policies as well.

3. Be flexible when handling ADA disability accommodation requests upon reopening. These are unique times, which require unique and creative solutions. The typical accommodations you may have made for an employee may not work in the current work environment because of safety or hardship reasons. Accommodations may also be temporary—communicate clearly if there is a specific end date. Under the ADA, only “qualified individuals with disability” are covered, so employees only have the right to request reasonable accommodation for their own disability (e.g., not covered as caregiver for sick parent or child at home, though they may be eligible for leave under FFCRA or FMLA). The ADA covers a wide range of disabilities, and the effects of the virus could exacerbate some mental health issues such as anxiety, obsessive-compulsive disorder and PTSD. If an employee requests an accommodation, employers must engage in an interactive process. The first step is to ask questions. How does the disability limit the employee’s ability to perform his or her job function? If not obvious from the description, you may need to request medical documentation or rely on alternatives, such as a prior doctor visit, or previous accommodation documentation if not outdated, or even a telemedicine consult. Discuss the requested accommodation with the employee and explore your options to allow him/her to continue to effectively perform the essential functions of the job. Accommodation requests may vary and depend on industry, work environment and individual job responsibilities. Some common COVID-19 related accommodations include additional PPE, workplace changes like plexiglass and one-way aisles, temporary restructuring of marginal job duties, modified work schedules, location changes and remote work. In some instances, if no accommodation is feasible, you may need to consider placing the employee on leave, often as a last resort.

4. One of the more important issues for employers and a common request is an exception to wearing a mask. Many state and local governments are requiring the use of face coverings, including within the workplace. More than 75% of our webinar poll respondents indicated they will require employees to wear face masks upon returning to work. When addressing requests for an exception to wearing a mask, whether due to respiratory issues, anxiety, claustrophobia or another disorder, it is important to balance accommodating a medical need with safety concerns for your workforce. Consider the work environment and conduct an individualized assessment of the facts (including an employee’s limitations). Use the interactive process to find alternatives to accommodate the request, whether you have the employee telework or change job duties to avoid coming into contact with others.

5. Due to the COVID-19 pandemic, OSHA is more important than ever across all industries, not just those at high risk (e.g., healthcare, manufacturing). Under federal OSHA guidelines, employers must provide a workplace free of known health and safety hazards that complies with OSHA standards and employees may report potential violations without fear of retaliation. OSHA also requires that employers report a case of COVID-19 if confirmed and is work-related and involves one or more of the general recording criteria, such as medical treatment beyond first-aid, days away from work or death. In addition, there are local state OSHA rules that employers should consider as they establish new policies and protocols upon reopening their workplace. Thirty states currently require COVID-19 preparedness plans, outbreak plans and/or hygiene training. Some features of state requirements include a site plan, protocols re: masks and physical distancing, screening, sanitizing and cleaning, training of employees and posting of plans. As employees return to the workplace, employers should continue to train managers and supervisors on how to address any safety-related complaints. Complaints should be taken seriously and addressed directly with the employee to better understand the issues or concerns. Employers should then communicate the results and let the employee know how the issue was resolved. In all cases, there should be no retaliation and management should apply policies consistently to mitigate the risk of further claims.