In light of the COVID-19 pandemic, many U.S. businesses remain shuttered or operating at reduced levels. While the ultimate decision to allow employees to return to "in-person" work will likely involve a staggered, multi-faceted, jurisdiction-by-jurisdiction approach, on April 16, 2020, the federal government nevertheless announced a three-phase plan for "reopening America," including guidance for state and local officials.

In the first phase, businesses are encouraged to continue remote work, returning to "in-person" work in phases. For businesses that do reopen "in-person" operations, common areas should remain closed and strict social distancing protocols should be enforced. Non-essential travel should remain limited. Special accommodations are recommended for workers who are at high risk. In the second phase, business should continue to encourage remote work and, for "in-person" operations, keep common areas closed. Moderate social distancing protocols should be enforced and businesses can resume non-essential business travel. Special accommodations for high risk workers should continue. During the third phase, in states and regions with no evidence of a rebound of COVID-19 cases, employers can resume unrestricted "in-person" staffing of worksites.

State and local governments should monitor symptoms, active COVID-19 cases and hospital resources in determining when to implement each phase. As noted, the requirements for reopening will vary by jurisdiction and possibly by industry as well; in other words, there will likely be no "one size fits all" approach. Perhaps most importantly, businesses that do reopen "in-person" operations need to ensure that appropriate healthy and safety safeguards are implemented prior to reopening their doors. Rushing to re-open before taking adequate measures to protect workers and customers could have serious ramifications.

To that end, the Centers for Disease Controls and Prevention (CDC) has issued guidance to assist employers in making decisions regarding reopening. According to the CDC, companies should not consider reopening unless and until they can answer yes to each of the following questions:

  • Are you in a community no longer requiring significant mitigation?
  • Will you be able to limit non-essential employees to those from the local geographic area?
  • Do you have protective measures for employees at higher risk (e.g., teleworking, tasks that minimize contact)?

In preparation for reopening, companies will need to implement workplace safety protocols, which could include providing masks, social distancing measures, physical workspace modifications, and screening and tracing protocols. Additionally, companies will need to have written policies and enforcement mechanism to insure compliance with those protocols. Companies will also need to prepare for bringing workers back into the workforce, which will require both strategic and administrative planning.

We have prepared a comprehensive return to work packet which addresses the legal and practical issues associated with preparing the workplace for reopening and bringing employees back to work. We have integrated guidance from federal and state agencies including the CDC, OSHA, the DOL, the EEOC and the FDA to identify best practices for our clients as appropriate for your jurisdiction and industry. If you have additional questions, please contact a Reed Smith employment lawyer or the Reed Smith lawyer with whom you normally work.

Article orignally published on 24 April 2020

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.