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‘No magic formula’: Back to work? Consider these questions first

Brian Pezza, Sarah Mullen, Neal Perryman

Brian Pezza (from left), Sarah Mullen, Neal Perryman

As state and local restrictions on non-essential businesses ease, some employers may be itching to bring back their employees to the workplace.

Not so fast, labor and employment attorneys say. As employers assess whether to reopen their businesses, they should adopt a measured approach and consider that reopening “should not be treated categorically as a must, that we must return employees back to work now,” said Sarah E. Mullen, a labor and employment lawyer with Lewis Rice in St. Louis.

“Covid-19 hasn’t disappeared because we’ve seen a relaxation in the state and local orders, and concerns about workplace exposure are going to continue,” she said.

In May, Mullen joined her colleagues Neal F. Perryman and Brian P. Pezza for a webinar to examine issues employers face as they navigate questions about whether and how they can safely bring employees back to work.

Mullen said whether employees should return to their workplaces will be dependent on analysis that takes into account their businesses, industries and jurisdictions.

“Each employer is going to have to balance their financial, economic, operational imperatives against potential concerns and risk,” she said. “Unfortunately, we don’t have the magic formula for each employer, or bright-line rules that an employer can apply to answer that question.”

There are a few questions, however, that can guide that conversation, Mullen said. One is whether an incremental return to work — allowing employees to return over a period of time and determining how it works out — makes sense.

“Thinking through a phased approach, I think, makes a lot of sense here particularly because the circumstances are uncertain,” she said.

Other questions to consider: Does your business have enough demand for its products to necessitate a return of the full work force? Are your employees motivated to return to work?

The panel of attorneys also discussed the standard of care for employers who decide to recall their employees to their workplaces.

Perryman defined the standard of care as what a reasonable person exercising ordinary caution and prudence would do under a set of circumstances. Decisions on whether to distribute personal protective equipment or hand sanitizer, and rules for office elevator use and against congregating in work spaces fall under the standard of care discussion, he said.

“The bottom line is, we’re all going to be judged in two or three years from now by how we acted and whether we acted reasonably,” he said.

Employee certifications, in which employees make representations to their employers that they are not currently experiencing COVID-19 symptoms, are quickly becoming part of the standard of care, Mullen said.

“In a pre-Covid-19 world, I think asking employees medical screening questions was really unthinkable in most places, but now it’s the standard of care and we have to be thoughtful of what those questions and criteria can be,” Mullen said.

The language of those certifications should be concise and track closely with the Centers for Disease Control & Prevention’s language, she added.

She offered an example of such a certification, which asks employees to state that they are not currently experiencing symptoms of the disease as identified by the CDC: a cough, shortness of breath or difficulty breathing, fever, chills or new loss of taste or smell.

Screenings also could include asking employees whether they have any reason to believe they’ve been exposed to a person with COVID-19 in the past two weeks, she said.

Employers who choose to implement screenings should administer them in a private manner. To prevent their employees from crowding in lines for screening, employers should use an app or other electronic method to collect the information employees provide.

Also, employers who draft language about guidelines and procedures shouldn’t assume it will remain unchanged through the end of 2020, Mullen said. Instead, they should continue to ensure they’re complying with evolving guidelines around COVID-19 prevention.

In addition to asking questions about symptoms, employers also should consider taking employees’ temperatures, Pezza said.

“That’s not an answer I would have given two months ago,” he said, noting that the Equal Employment Opportunity Commission generally prohibits posing medical inquiries to current employees.

There is no across-the-board requirement that employers take employees’ temperatures, Pezza said. If employers choose to do so, they need to do it because they believe it’s the right thing for their workplaces, he said.

They also need to ensure they are doing it in the right way, he said. Employers should consider whether they can get the right type of thermometers, whether they can screen in a way to maintain confidentiality and whether they can protect the safety of the person taking employees’ temperatures.

Yet another big question for employers to consider is whether to pay employees for their time while they wait to be screened prior to their shifts and for the time it takes to be screened, Pezza said.

“There isn’t direct guidance that we can see right now as to whether that time would be compensable, but certainly the conservative approach would be to believe that it is,” he said.