The New Hybrid Workplace: Some Employer Considerations During Covid-19

• Publication year: 2020
• Author: By Dawn Ross

THE NEW HYBRID WORKPLACE: SOME EMPLOYER CONSIDERATIONS DURING COVID-19

By Dawn Ross

Dawn Ross is the managing partner of Carle, Mackie, Power & Ross LLP, and leads its Labor & Employment group. Ms. Ross provides counsel and litigation support to both public and private employers. Ms. Ross can be reached at dross@cmprlaw.com.

As Shelter in Place restrictions continue to ease throughout California and employees return to the office, it is important for employers to be aware of the ever-changing requirements and expectations to keep your staff and the public safe.

The following provides some initial considerations for employers under the Families First Coronavirus Response Act ("FFCRA") and the Family and Medical Leave Act ("FMLA"), as well as best practices. Employers should also be aware of many other considerations that apply, including reasonable accommodation obligations under the Fair Employment and Housing Act ("FEHA") and the Americans with Disabilities Act ("ADA"), as well as leave obligations under the California Family Rights Act ("CFRA").

A. CREATE A WRITTEN RETURN-TO-WORK PLAN

Most employers will return to the office in stages, with some employees continuing to work at home for an extended period of time. This new hybrid workplace is likely to become the norm over the next several years. Instead of allowing this to happen in a haphazard way, create a written return to work plan detailing who will be returning to the office, when they will be returning, and outlining what precautions have been put into place to keep employees and the general public safe. Many of these steps will take a month or more, so start planning early.

1. Survey Your Employees. In deciding who will be returning to the office, consider surveying your employees to find out who wants to return, who does not want to return, and who has medical or childcare issues that prevent their return.
2. Evaluate Your Workspaces. Until a large portion of the population has been successfully vaccinated, employers will continue to need to implement social distancing guidelines. This will mean moving employees into empty spaces, repurposing meeting rooms, installing plexiglass or other barriers, implementing different work shifts; installing workflow arrows, and installing air purifiers and/or HEPA filters.
3. Order PPE. Order masks, gloves, hand sanitizer stations, cleaning supplies, and any other PPE needed for your workplace.
4. Daily Health Checks. The Centers for Disease Control and Prevention ("CDC") and the Occupational Safety and Health Administration ("OSHA") recommend that all employers consider some kind of health check for employees coming into the workplace (other than home). In addition, several counties have issued Health Orders instructing all employers to create policies that require employees to complete a health check before coming into the office. A number of counties have created a daily health check app for this purpose.
5. Temperature Checks & COVID-19 Tests. Employers are also allowed to conduct temperature checks and to require employees to take COVID-19 tests (at the employer's expense).
6. Plan for a Positive COVID-19 Test. Employers should prepare a written plan for what steps will be taken if and when an employee tests positive for COVID-19. This plan should address contact tracing, notifying local health officials, and cleaning the affected area, and must include a written...