Key Takeaways | Preparing Your Workplace: How to Navigate Safety Mandates and Recommendations - McDermott Will & Emery

Key Takeaways | Preparing Your Workplace: How to Navigate Safety Mandates and Recommendations


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 second module in our toolkit focuses on how to prepare the workplace for a safe reopening using the recent guidance from the Centers for Disease Control and Prevention (CDC) and Occupational Safety and Health Administration (OSHA). Our panel will include Joshua Markus, General Counsel North America of Ardagh Group, who will offer his unique perspective on new safety mandates and workplace practices that employers will need to implement.

View the full webinar here.

In Depth

  1. Prioritizing the safety of your employees and customers is critical as you prepare to reopen your business. All workplace policies should be in writing, keeping in mind that different locations may require different policies depending on your workspace layout. While you cannot guarantee blanket safety, communicating the “why” and basing your policies on the science, CDC recommendations, and other state and local guidelines will help you communicate the safety measures that the company has taken, employee obligations, and disciplinary measures for noncompliance. As with all of these COVID-related policies, it is important to provide social distancing protocol training to employees and managers in advance of the return to the workplace, and to regularly review and modify policies as new guidelines are released and to communicate and implement those policies to employees in a consistent, transparent and thoughtful way.
  2. CDC guidelines provide that social distancing is one of the best tools to avoid exposure to COVID-19 and stop its spread. In an informal survey of our audience, more than 80% of respondents indicated they either have a detailed written plan for social distancing or outlined general guidelines, while 18% still do not have a plan in place. As businesses reopen, social distancing protocols may vary based on industry, workplace setting and culture. Employers should consider CDC guidelines as well as state and local government recommendations or requirements when developing a plan. Some implementation mechanisms can include physical barriers, direct flow and direction of foot traffic, staggered schedules/breaks, maximum capacity and limiting common areas, and continued remote working and virtual meetings, even within the workplace.
  3. Almost half of our webinar poll respondents indicated they would require the use of face coverings in the workplace. The CDC advises the use of simple cloth face coverings in public settings where social distancing measures are difficult to maintain. As we noted throughout the webinar, employers should follow state and local regulations as well as OSHA and CDC guidance on personal protection equipment (PPE) protocols. If PPE is required by Executive Order or State Guidelines to reopen, then employers must provide PPE to comply with the law. Some states also have reimbursement laws, such as California and Illinois, requiring employers to reimburse employees for reasonable and necessary business expenses, so if face masks are required, then you need to reimburse if you are not providing them to employees. Recommendations for PPE specific to certain occupations or job tasks will depend on geography, risk assessments for workers, and effectiveness in preventing the spread of COVID-19. CDC and OSHA guidance should be checked regularly for any updated requirements applicable to your business.
  4. Implementing employee self-screening and employer screening protocols prior to your employees entering the workplace should be part of your comprehensive reopening plan. 20% of our webinar poll respondents indicated that they are currently taking temperatures at the door before employees enter the workplace. However, temperature taking is only one element in your comprehensive COVID-19 reopening plan, as many people infected with COVID-19 have no temperature and are asymptomatic or may present with other symptoms but no fever. Employers may also consider questionnaires. Some state and local guidelines may require or strongly recommend symptom checks by the employer (e.g., Colorado, New Hampshire, Connecticut), and EEOC guidance permits employers to conduct mandatory testing for the presence of COVID-19 if they ensure the tests are accurate and reliable and keep the information confidential. As you implement these new screening protocols, employers should consider issues including whether non-exempt employee wait time for screening is compensable, reimbursement for self-screening (e.g., purchase of a thermometer), show up pay (e.g., arriving to work with symptoms and being sent home), employee privacy issues, and potential disciplinary action if an employee does not comply with screening protocols.
  5. Whether you are handling new sanitization and cleaning protocols in-house or through a third-party vendor, it is important to remember that it is the employer’s responsibility to keep the workplace safe and comply with its duties under OSHA given the highly contagious nature of COVID-19. It is critical to communicate clearly to your team with a written internal policy. New cleaning protocols should comply with state and local guidelines and CDC guidance, and be consistent with best practices for your specific industry. This will vary depending on the nature of your business. For example, if there is shared equipment such as time clock stations for staff, you should develop a policy on how to regularly clean that equipment or consider possible non-contact options.