COVID-19 Small Business Resource Center

Reopening Your Business

Frequently Asked Questions

Updated: October 26, 2020

As state and local governments ease or lift COVID-19 restrictions, employers must carefully plan how to safely reintroduce employees to the workplace and comply with various federal, state, and local employment laws. Keep in mind guidelines for returning to work continue to evolve; continue to monitor our COVID-19 Resource Center for updates.

Quick links:

General

A: The decision to reopen must, at a minimum, comply with applicable federal, state, and local orders, directives, and guidelines. Make sure you read and understand all that apply to you, including information from OSHA, the CDC, and your state and locality. These guidelines may include specific steps that businesses must take before resuming operations, and some may be industry- and location-specific.

A: The return to work process will likely occur in phases with certain types of businesses permitted to resume limited operations before others are allowed to do so. If conflicts exist among directives and guidelines, consider consulting legal counsel.

Even where employers are permitted to allow employees back into the workplace, employers should independently assess whether it is safe to do so, including whether social distancing can be maintained. Employers may also want to consider, when possible, having employees return to work voluntarily at first, or returning employees to the workplace in waves, starting with the most critical workers first. When you decide to reopen once permitted, document the reasons for doing so, as well as the job-related criteria for determining who is allowed back into the workplace.

Screening Employees and Visitors

A: Some jurisdictions that are allowing businesses to reopen are also requiring employers to implement certain screening practices to help ensure its safe for employees to enter the workplace. Regardless of whether you are subject to such requirements, you may want to consider various options for screening employees and visitors before they're allowed to enter the workplace, such as temperature checks, COVID-19 testing, and/or self-certifications (see question about restrictions below).

Employers that intend to conduct COVID-19 testing will also need to evaluate which type of test to use (and ensure that it is accurate and reliable), who will perform it and how to protect them, how it will be administered, and the implications of various testing protocols, consulting local health officials when assessing the different options. Be sure to apply all screening protocols uniformly and to treat screening results as confidential medical records.

A: Employers should look to federal, state, and local guidelines for information on COVID-19 symptoms. In late April, the CDC expanded the list of COVID-19 symptoms. The CDC says the following symptoms may be consistent with COVID-19:

  • Cough
  • Shortness of breath or difficulty breathing

Or at least two of these symptoms:

  • Fever
  • Chills
  • Repeated shaking with chills
  • Muscle pain
  • Headache
  • Sore throat
  • New loss of taste or smell

A: Certain screening practices may be considered medical examinations and therefore subject to rules under the Americans with Disabilities Act (ADA) and similar state laws. Generally, medical examinations must be job-related and consistent with business necessity, meaning an employer would need to conduct a medical exam because they have a reasonable belief that: an employee's ability to perform essential job functions will be impaired by a medical condition; or an employee will pose a direct threat due to a medical condition.

Employers must determine whether a direct threat exists based on the best available objective medical evidence, such as guidance from CDC or other public health authorities. According to the U.S. Equal Employment Opportunity Commission, if an employer's screening practices are consistent with advice from the CDC and public health authorities, then the employer will generally meet ADA rules.

As of March 2020, the COVID-19 pandemic has met the ADA's direct-threat standard, according to the EEOC. If the CDC and state/local public health officials revise their assessment of the spread and severity of COVID-19, that could affect whether a direct threat still exists and whether screening would be permissible. This means that guidance may shift as the crisis recedes, so employers should consider consulting legal counsel before implementing screening protocols.

A: Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued precautions, including recommending temperature checks, employers may measure employees' body temperatures, according to the U.S. Equal Employment Opportunity Commission (EEOC). However, employers should be aware that some people with COVID-19 don’t have a fever.

A: The EEOC says employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. Therefore, an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus. Employers should administer all testing protocols consistently and maintain the confidentiality of all test results.

A: Current EEOC guidance permits COVID-19 virus testing but not antibody testing. According to interim guidance, an antibody test constitutes a medical examination under the ADA and at this time does not meet the ADA's "job related and consistent with business necessity" standard for allowing medical examinations in the workplace. The EEOC will continue to closely monitor the CDC's recommendations, and could update these guidelines in response to changing recommendations, but for now antibody testing is not permitted by the EEOC.

A: Some states may require pay in these situations. Under federal law, the determination of whether these types of activities are compensable may depend on whether they are considered an "integral and indispensable" part of the employee's principal work activities. To date, there hasn't been any guidance from the Department of Labor that addresses whether temperature checks qualify for this standard in the context of COVID-19. Employers may want to err on the side of caution and pay employees for the time they spend on the employer's premises waiting for, and undergoing, required temperature checks and/or consult legal counsel to determine how federal and state law would apply to their specific circumstances.

A: State privacy laws may require employers to provide notice at the time of collection, describing what information will be collected (e.g., body temperature) and the purposes for which it will be used (e.g., to maintain a safe work environment).

A: If an employee objects to screening practices, ask them why and consider whether and how their concerns can be addressed. For instance, if the employee cites a sincerely held religious reason, the employer should consider if a reasonable accommodation can be provided, such as allowing the employee to telework.

A: The Genetic Information Nondiscrimination Act generally prohibits employers from asking employees about their family's medical history. However, the EEOC says employers may ask employees whether they have had contact with anyone who the employee knows has been diagnosed with COVID-19, or who may have symptoms associated with COVID-19.

A: The employer should ask the employee to follow CDC, state, and local guidelines for such situations. The CDC recommends that the general public stay home until 14 days after last exposure. Employers usually would be justified in barring employees from entering the workplace in these circumstances.

For the general public, the CDC defines close contact as less than six feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period starting from two days before illness onset (or, for asymptomatic patients, two days prior to test specimen collection) until the time the patient is isolated. Close contact also includes:

  • Providing care at home to someone who is sick with COVID-19.
  • Having direct physical contact with the person (hugged or kissed them).
  • Sharing eating or drinking utensils.
  • The person with COVID-19 sneezed, coughed, or somehow got respiratory droplets on the individual.

The CDC says the determination of close contact should be made irrespective of whether the person with COVID-19 or the contact was wearing a cloth face covering.

A: As mentioned above, the CDC generally recommends asymptomatic individuals stay home for 14 days after last exposure. If there are two exposures, the 14 days is from the date of the latter exposure.

A: A negative test result doesn't change the CDC's recommendation for asymptomatic individuals in the general public to stay home for 14 days after last exposure.

Note: The CDC has separate guidelines for healthcare workers and certain essential workers.

Social Distancing and Other Measures to Protect Employees

A: To help prevent the spread of COVID-19, consider:

  • Maintaining social distancing (see below)
  • Training employees on safety and good hygiene
  • Sanitizing the workplace frequently
  • Providing protective equipment, such as face masks and hand sanitizer
  • Offering and encouraging employees to take additional time to wash their hands and clean workspaces

A: Consider steps to maintain at least six-feet between individuals in the workplace, adjusting the work environment and office norms if necessary. Options include but aren't limited to:

  • Allowing employees to telework whenever possible;
  • Offering flexible work hours and staggered start-times and shifts;
  • Increasing physical space between employees at the worksite (for example, opening every other cash register);
  • Putting up partitions between employees;
  • Increasing physical space between employees and customers through physical barriers and/or demarcating six-foot intervals;
  • Postponing non-essential meetings or events;
  • Prohibiting group gatherings in the workplace and limiting access to spaces where groups tend to gather;
  • Implementing restrictions on business travel;
  • Delivering services remotely or delivering products through curbside pick-up or delivery;
  • Discouraging hand shaking;
  • Discouraging sharing tools and equipment and food and drinks; and
  • Restricting visitors in the workplace.

A: Train employees on safety protocols and widely communicate ways to practice good hygiene, including the following:

  • Complying with federal, state, and company safety and health rules
  • Wearing protective equipment and understanding its limitations
  • Washing hands often with soap and warm water for at least 20 seconds
  • Avoiding touching eyes, nose, and mouth
  • Cleaning frequently touched surfaces (like doorknobs and countertops) with household cleaning spray or wipes
  • Covering coughs and sneezes with a tissue or the inside of the elbow
  • Staying home when feeling sick

A: Consider the following:

  • Disinfect and clean the workplace regularly
  • Maintain and adjust HVAC systems and increase ventilation
  • Provide tissues and no-touch disposal receptacles
  • Provide soap and water in the workplace
  • Provide hand sanitizers for when soap and water isn't available

A: Some state and local jurisdictions have enacted emergency rules requiring individuals to wear face coverings in public and in certain businesses. Some also require employers to provide such equipment at the employer's expense. Review applicable rules and assess whether employees need to or should wear cloth face coverings, surgical masks, shields, respirators, or other protective equipment. Employers should ensure employees comply in the workplace, if applicable. Also consider training employees on how to properly use protective equipment.

Note: Depending on the job, industry and the circumstances, employers may also be required to provide protective equipment under existing federal and state occupational safety and health regulations.

A: If the gear is required by law, the employer, or the nature of the work, then the time an employee spends putting on and taking off gear on the employer's premises must be paid. Under federal law, the time must be paid only when the employer or the nature of the job mandates that it takes place on the employer's premises. According to the Department of Labor, if employees have the option and ability to change at home, there is no requirement for the time to be paid, even if workers choose to change at work (see Wage & Hour Advisory Memo 2006-2).

Returning Employees to the Workplace

A: Under OSHA's General Duty Clause employers must take reasonable steps to prevent occupational exposure to COVID-19. This may include a combination of engineering controls (such as, installing physical barriers), administrative controls to promote social distancing (such as, blocking access to gathering areas and staggering shifts to minimize the number of workers in the workplace), providing and/or requiring PPE, and safety and health rules (such as, requiring employees to wash their hands frequently and to wear face coverings). Employers that fail to comply with the General Duty Clause or violate a specific OSHA standard may face fines.

Many state and local orders are requiring employers to take certain precautions to protect employees who return to the workplace. If employers violate these orders, they may be subject to sanctions.

Workers' compensation coverage may be available in connection with workplace exposure, but it will depend on state law. This may provide some protection for employers concerned about potential liability and damages, since workers' compensation is often the exclusive remedy for injuries and illnesses that arise out of work.

Employees may also try to file civil lawsuits against their employers when not barred by workers' compensation law.

A: Some states have enacted new laws aimed at protecting employers from civil lawsuits related to COVID-19 exposure in the workplace. For example, Mississippi has enacted legislation that protects employers from civil damages for injuries or death resulting from exposure to COVID-19 during the performance of an employee's job duties, where the employer can show that they attempted in good faith to follow public health guidance. Other states, including Georgia, Idaho, Iowa, Kansas, Louisiana, Nevada, North Carolina, Oklahoma, Utah, and Wyoming have also recently adopted legislation with certain protections narrowing liability. Additionally, some states, such as Alabama and Arkansas, have issued executive orders that address employer liability. Check your state law and executive orders for details. If you're in a state with such protections, discuss the potential implications with legal counsel.

A: Employers should consult with counsel to assess potential liabilities and how best to address potential exposure to a claim. Generally, a release of liability is usually not enforceable for defending against worker's compensation claims and may be prohibited in certain jurisdictions. In addition, the enforceability of waivers regarding exposure to COVID-19 in the workplace will vary by state, and with some states prohibiting such waivers. Waivers also won't replace the employer's duty to comply with laws and guidance to maintain a safe workplace. Reach out to counsel for further information on the use of waivers or other legal documents in your business.

A: Consider sending them a letter explaining the timeline for reopening, what steps you are taking to protect them from COVID-19, and a deadline for them to confirm that they will be returning to work. Return to work letters should typically include the terms of employment, highlighting any changes in pay, benefits, leave, policies or procedures, contact information for questions, as well as an at-will employment statement. Additionally, include a statement that expresses your appreciation for their commitment, understanding, and flexibility during the COVID-19 crisis.

Also keep in mind any predictive scheduling laws that may apply to your business.

A: If employees have concerns about returning, determine what, if any, steps you could/should take to address them. Employees who refuse to report to work may have protections from adverse action. For example, under the Occupational Safety and Health Act, employees may have the right to refuse to work if all of the following conditions are met:

  • Where possible, they have asked the employer to eliminate the danger, and the employer failed to do so;
  • They genuinely believe that an imminent danger exists;
  • A reasonable person would agree that there is a real danger of death or serious injury; and
  • There isn't enough time, due to the urgency of the hazard, to get it corrected through regular enforcement channels, such as requesting an OSHA inspection.

Section 7 of the National Labor Relations Act (NLRA), which grants employees the right to act together to improve wages and working conditions, may also come into play in this situation.

Employees may also have certain rights under state and local orders and/or may be entitled to leave under federal, state, and local leave laws.

A: Many employees want to return to work if it is safe and allowed by law. Additionally, unemployed workers typically have to attest each week that they haven't refused an offer of work to keep receiving benefits. Keep in mind that employees may still be eligible for unemployment benefits if they refused the offer for "good cause" (as defined by state law). For instance, if you substantially change the job, hours, or pay, the employee may be eligible for unemployment benefits.

A: Employees may be entitled to leave under federal, state, and local rules for various situations related to COVID-19. For instance, if an employee works for an employer with fewer than 500 employees and is unable to work because their child's school is still closed, they would be entitled to paid leave under the federal Families First Coronavirus Response Act. Review policies, procedures, and supervisor training to ensure compliance with applicable federal, state, and local rules on leave.

A: All decisions must be neutral and job-related, and not based on protected characteristics, such as age, race, pregnancy, or other factors unrelated to the job, such as who might be less susceptible to contracting COVID-19. For example, the first wave of rehires may be your most critical workers or those that have been with the company the longest. Make sure to document your objective, job-related reasons for determining which employees to call back to work and when.

A: Various federal, state, and local laws and regulations require that employees complete certain paperwork and provide certain notices at the time of hire. Some of these laws address situations in which an employee is returning after a furlough or layoff. For instance, an employer won't generally need to complete a new Form I-9 (to establish identity and work authorization) if the worker is continuing in their employment and has a reasonable expectation of employment at all times due to a temporary layoff for lack of work. If this standard cannot be met, the employer must follow the instructions for "rehired" employees in the USCIS Handbook for Employers. For other new hire paperwork and notice requirements, employers should check the applicable laws and regulations to determine if/how they address employees who are returning to work.

A: The Americans with Disabilities Act and similar state laws require employers to provide reasonable accommodations to individuals with disabilities, unless doing so would impose an undue hardship on the employer. An employee at high risk for complications from COVID-19 due to a disability may request a reasonable accommodation to reduce their chances of infection, such as asking to telework, for personal protective equipment or for paid or unpaid leave if their job isn't conducive to telework. Additionally, if the employer requires employees to wear protective equipment, an employee may ask for an accommodation if they are unable to comply because of their disability or because of the need for a religious accommodation. Prepare to respond to such requests in accordance with applicable laws.

A: Employers may ask employees with disabilities to request accommodations that they believe they may need when the workplace re-opens, according to EEOC guidance.

A: An employee—or a third party, such as an employee's doctor—must let the employer know that they need a change for a reason related to a medical condition (here, the underlying condition). Individuals may request accommodation in conversation or in writing. While the employee (or third party) doesn't need to use the term "reasonable accommodation" or reference the ADA, they may do so.

The employee or their representative should communicate that they have a medical condition that necessitates a change to meet a medical need. After receiving a request, the employer may ask questions or seek medical documentation to help decide if the individual has a disability and if there is a reasonable accommodation, barring undue hardship, that can be provided.

A: In guidance issued on May 7, 2020, the EEOC stated that the ADA doesn't allow the employer to exclude the employee – or take any other adverse action – solely because the employee has a disability that the CDC identifies as potentially placing the employee at "higher risk for severe illness." Under the ADA, this action would be allowed only when the employee's disability poses a "direct threat" to their health that cannot be eliminated or reduced by reasonable accommodation. The ADA regulations require an employer to consider whether there are reasonable accommodations that would eliminate or reduce the risk so that it would be safe for the employee to return to the workplace.

The ADA direct-threat requirement is a high standard, requiring the employer to show that the individual has a disability that poses a "significant risk of substantial harm" to their own health. This assessment cannot be based solely on the fact that the employee has a specific condition. The determination must be an individualized assessment based on a reasonable medical judgment about this employee's disability – not the disability in general – using the most current medical knowledge and/or on the best available objective evidence, according to the EEOC. Analysis of these factors will likely include considerations based on the severity of the pandemic in a particular area and the employee's own health and particular job duties, according to the EEOC. The direct threat determination also considers the likelihood that an individual will be exposed to the virus at the worksite and the measures the employer is taking to protect workers. Employers should consult legal counsel when making this determination.

Note: State and local nondiscrimination laws may offer additional protections.

A: The EEOC says accommodations may include additional or enhanced protective gowns, masks, gloves, or other gear beyond what the employer may generally provide to employees returning to its workplace. Accommodations also may include additional or enhanced protective measures, for example, erecting a barrier that provides separation between an employee with a disability and coworkers/the public or increasing the space between an employee with a disability and others. Another possible reasonable accommodation may be elimination or substitution of particular "marginal" functions (less critical or incidental job duties as distinguished from the "essential" functions of a particular position). In addition, accommodations may include temporary modification of work schedules (if that decreases contact with coworkers and/or the public when on duty or commuting) or moving the location of where one performs work (for example, moving a person to the end of a production line rather than in the middle of it if that provides more social distancing).

These are only a few ideas. Identifying an effective accommodation depends, among other things, on an employee's job duties and the design of the workspace. An employer and employee should discuss possible ideas; the Job Accommodation Network (www.askjan.org) also may be able to assist in helping identify possible accommodations. As with all discussions of reasonable accommodation during this pandemic, employers and employees are encouraged to be creative and flexible.

A: Employers are prohibited from discriminating against workers on the basis of age and pregnancy, among other characteristics. When navigating COVID-19, employers may not prevent workers from entering the workplace, require them to telework, or place them on involuntary leave because of a potential increased risk of exposure. However, an employer may choose to offer the option of telework or other accommodations to older or pregnant workers, or to other workers who may have a need for such accommodations.

A: If an employee shows symptoms, separate them from other employees, send them home immediately, and direct them to speak with a health care provider. Additionally, notify other employees of possible exposure. When informing other employees, maintain confidentiality and do not reveal who had the symptoms. Also, establish and communicate protocols for returning to work after being symptomatic, following CDC guidelines and applicable laws.

A: Employers may ask employees to notify them if they've been in contact with someone who has COVID-19. The CDC is currently recommending that people who are close to someone with COVID-19, who then develop symptoms of the virus, self-quarantine for at least 14 days. Spell out any notification rules or guidelines in a written policy and continue to monitor guidelines for any changes in notification protocols. If an employee is confirmed to have COVID-19, employers should inform other employees of their possible exposure while maintaining confidentiality (that is, don't reveal who has the illness). Additionally, immediately contact local health officials for further guidance.

As a precautionary measure, consider asking all employees who worked closely with that employee to self-quarantine for 14 days. In addition, have a cleaning company complete a deep cleaning of the workspace.

Note: Employers should treat all information about an employee's illness as a confidential medical record and keep it separate from the employee's personnel file.

Pay Considerations

A: Exempt employees must generally receive their full salary in any workweek in which they perform work. Employers are prohibited from reducing exempt employees' salaries based on short-term, day-to-day, or week-to-week operating requirements of the business.

Employers may change exempt employees' salaries prospectively to reflect long-term business needs (as long as it meets applicable minimum salary requirements), but reductions may not be made due to a decrease in the quality or quantity of work performed. For instance, an employer could reduce all exempt employees' salaries by 5 percent for the upcoming fiscal year because of budgetary constraints (provided the reduced salary still meets minimum requirements).

A: Under the Fair Labor Standards Act (FLSA), to be classified as exempt from overtime, the employee must generally satisfy all of the following tests:

  • Meet the minimum salary requirement (currently $684 under the FLSA, but may be higher under state law);
  • With very limited exceptions, the employee must receive their full salary in any week they perform work; and
  • The employee's primary duties must meet certain criteria.

There is no option to pay a part-time exempt employee below the minimum salary requirement. Generally, if you pay the employee a salary less than the minimum, the employee must be classified as non-exempt (entitled to minimum wage and overtime when applicable). Even if you only reduced their salary to $684 per week (or the state minimum if higher), you may be jeopardizing their exempt status because the change is tied to a reduction of hours.

A: Yes, any employee may be classified as non-exempt (and therefore entitled to minimum wage and overtime when applicable). Keep in mind that you may be required to provide a certain amount of advance notice before implementing this type of change. Under federal law, non-exempt employees must be paid for all hours worked, which includes time spent working plus certain nonproductive time, such as rest breaks, travel time, and training time. If you reclassify employees as non-exempt, all of this time must be included when determining whether you have met the minimum wage and overtime requirements.

A: Employers may reduce non-exempt employees' hours and pay prospectively provided the employee is paid at least the minimum wage per hour and overtime when due. Employers should also consider the following:

Advance notice:

Depending on your state or local law, a certain amount of advance notice may be required before making the change.

Discrimination:

All pay practices and pay decisions must be job-related and applied fairly and consistently. It is a best practice to document the reasons for a reduction in pay and/or hours.

Unemployment Benefits:

Employees who have their hours/pay reduced may be eligible for partial unemployment benefits, typically a portion of the pay that they would have received if they were fully unemployed. Keep in mind that employees who quit as a result of a significant reduction in hours/pay may also be eligible for unemployment benefits. Check your state law for details.

Employee Benefits:

A reduction in hours may also affect eligibility for employee benefits, such as health insurance. Refer to your plan documents for details about eligibility. If an employee accrues paid time off as a full-time employee but subsequently changes to part-time, you may be required to either pay the employee for any unused vacation or allow the employee to use the accrued vacation as a part-time employee. Federal law and certain states and local jurisdictions require employers to provide paid leave to employees. In many cases, part-time employees are eligible for such leave and/or may be entitled to use any leave they accrued while a full-time employee. Check the leave laws for details.

PPP Loan Forgiveness:

If you obtained a loan under the Paycheck Protection Program, the amount of loan forgiveness may be reduced if you lower an exempt and/or non-exempt employee's pay by more than 25 percent or the changes result in fewer full-time equivalent (FTE) employees. A reduction in pay and/hours may also make it more difficult for you to spend at least 60 percent of the loan on payroll costs, another criterion for loan forgiveness.

A: Loan forgiveness will not be reduced based on an inability to rehire employees if the employer can document: (1) written offers to rehire individuals who were employees of the company on February 15, 2020; or (2) an inability to hire similarly qualified employees for unfilled positions by December 31, 2020.

Additionally, forgiveness will not be reduced for failure to maintain employment levels if the organization is able to document an inability to return to the same level of business activity as existed prior to February 15, 2020, due to compliance with COVID-19-related guidance for sanitation, social distancing, or worker or customer safety requirements from the Health and Human Services (HHS), the Centers for Disease Control and Prevention (CDC), or the Occupational Safety and Health Administration (OSHA) between March 1 and December 31, 2020.

The documentation required would be satisfied if an employer made a good faith, written offer of rehire at the same salary/wages and for the same number of hours and the employee rejected the offer of rehire, and the employer notified the applicable state unemployment insurance office of the employee’s rejection of rehire within 30 days. Employees who are terminated for cause, voluntarily resign, or voluntarily request and receive a reduction of hours may also be excluded from the FTEE reduction calculations.

A: Under federal law, if non-exempt employees report to work but there is no work available, you aren't generally required to pay them for the work hours missed, unless you have promised otherwise. However, some state laws require employers to pay employees for a minimum number of hours when they report to work but are sent home before the end of their scheduled shift. Check your applicable law for rules.

Note: If non-exempt employees perform any work and/or are required to wait for a decision to be made about sending them home, they must be paid for the time spent working and/or waiting.

A: In general, non-exempt workers working for private, for-profit employers must be paid at least the minimum wage and cannot volunteer their services. Additionally, if an exempt employee works any part of the workweek for private, for-profit employers, they generally must be paid their full salary and cannot volunteer their services. In certain circumstances, volunteering in the public and non-profit sectors may be allowed.

Remote work

A: Set clear, measurable goals for remote workers and make sure they are realistic since employees may be juggling childcare and family responsibilities or experiencing other challenges during the pandemic. Be sure to communicate that while working from home, the employee is still expected to complete their work assignments, be available during regular business hours (understanding potential limitations due to the pandemic), and communicate with their supervisor and others as needed. Additionally, retain discretion for changing the telecommuting arrangement at any time. If you anticipate having employees working from home for an extended period, have employees sign and acknowledge a simple agreement outlining the arrangement.

When working remotely, interactions with colleagues and supervisors may be less frequent than they are in the traditional workplace setting. This can lead to a bottleneck of important information and may result in feelings of isolation among remote workers. To address these challenges, schedule regular virtual meetings between remote workers and their co-workers, encourage video conferencing, and highlight and acknowledge their work to colleagues. Conduct regular check-ins with employees to see how they are adapting to working from home and to provide feedback on their work.

A: The U.S. Department of Labor (DOL) generally requires that an employee must be paid for all the time between their first and last principal work activities. However, the DOL has announced that it won't apply the continuous workday rule in certain situations where employers give teleworking employees flexibility during the COVID-19 pandemic. For example, an employer and employee may agree to a work schedule of 7 a.m.-9 a.m., 11:30 a.m.-3 p.m., and 7 p.m-9 p.m. on weekdays. In such a case, the employer must compensate the employee for all hours actually worked (7.5 hours in this example), but not all 14 hours between the hours of 7 a.m. and 9 p.m. The continuous workday rule continues to apply to employees who aren't teleworking for COVID-19 related reasons. Employers should check their state laws for similar rules.

Agency Plans & Guidance

Updated: October 26, 2020

Federal and state agencies and governments have started to release basic frameworks and guidance for businesses to follow before reopening (some of which are provided below). Timelines for reopening vary from state to state, industry to industry and from business to business. While some states have begun partial reopening, others are in the planning stages. Check your state government websites for the most up-to-date information.

Checklist

Some states have announced plans to ease restrictions that were placed on businesses and individuals as a result of the COVID-19 pandemic. Regardless of whether your business is located in one of these states, you're probably starting to wonder what steps you will need to take in order to safely reintroduce employees back into the workplace.

Here are some key factors to consider:

Review official guidance.

Read and make sure you understand applicable federal, state, and local orders, directives, and guidelines, including information from OSHA and the CDC. These may include specific steps that businesses must take before resuming operations, and some may be industry and location-specific. The return to work process will likely occur in phases with certain types of businesses permitted to resume limited operations before others are allowed to do so. If conflicts exist among directives and guidelines, consider consulting legal counsel.

Independently assess your situation.

Even where employers are permitted to allow employees back into the workplace, employers should independently assess whether it is safe to do so, including whether social distancing can be maintained. Employers may also want to consider having employees return to work voluntarily at first to help address employees' needs and concerns, or returning employees to the workplace in waves, starting with the most critical workers first.

Consider screening practices.

Consider various options for screening employees and visitors before they're allowed to enter the workplace, such as temperature checks, COVID-19 testing, and/or self-certifications (see rules below). Employers that intend to conduct COVID-19 testing will also need to evaluate which type of test to use, who will perform it, how it will be administered, and the implications of various testing protocols, consulting local health officials when assessing the different options. Employers should also ensure consistency in applying their screening procedures to applicants and employees. In addition, make sure to treat screening results as confidential medical records.

Determine whether screening is subject to ADA rules.

Many screening practices would be considered medical examinations and therefore subject to certain rules under the Americans with Disabilities Act (ADA) and similar state laws. Generally, medical examinations must be job-related and consistent with business necessity, meaning an employer would need to conduct a medical exam because they have a reasonable belief that: an employee's ability to perform essential job functions will be impaired by a medical condition; or an employee will pose a direct threat due to a medical condition.

Note: As of March 2020, the COVID-19 pandemic has met the direct-threat standard referred to above, according to the U.S. Equal Employment Opportunity Commission (EEOC). If the CDC and state/local public health officials revise their assessment of the spread and severity of COVID-19, that could affect whether a direct threat still exists and whether screening would be permissible. This means that guidance may shift as the crisis recedes, so employers should consider consulting legal counsel before implementing screening protocols.

Maintain social distancing.

Consider steps to maintain at least six-feet between individuals in the workplace, adjusting the work environment and office norms if necessary. Options include but aren't limited to:

  • Allowing employees to telework whenever possible;
  • Offering flexible work hours and staggered start-times and shifts;
  • Increasing physical space between employees at the worksite (for example, opening every other cash register);
  • Putting up partitions between employees;
  • Increasing physical space between employees and customers through physical barriers and/or demarcating six-foot intervals;
  • Postponing non-essential meetings or events;
  • Prohibiting group gatherings in the workplace and limiting access to spaces where groups tend to gather;
  • Implementing restrictions on business travel;
  • Delivering services remotely or delivering products through curbside pick-up or delivery;
  • Discouraging hand shaking;
  • Discouraging sharing tools and equipment and food and drinks; and
  • Restricting visitors in the workplace.

Designate a safety lead.

Consider designating a point person responsible for workplace safety during the COVID-19 pandemic and ensure compliance with federal and state occupational safety and health requirements. Make sure employees feel safe about returning to work. Tell them what steps you have taken to protect them and whom they can contact if they have concerns.

Train employees to practice good hygiene.

Train employees on safety protocols and widely communicate ways to practice good hygiene, including the following:

  • Wash hands often with soap and warm water for at least 20 seconds.
  • Avoid touching your eyes, nose, and mouth.
  • Clean frequently touched surfaces (like doorknobs and countertops) with household cleaning spray or wipes.
  • Cover coughs and sneezes with a tissue or the inside of the elbow.
  • Stay home when feeling sick.

Thoroughly sanitize the workplace.

Consider more frequent cleaning and implement sanitary practices, including the following:

  • Disinfect and clean the workplace regularly.
  • Maintain and adjust HVAC systems and increase ventilation.
  • Provide tissues and no-touch disposal receptacles.
  • Provide soap and water in the workplace.
  • Provide hand sanitizers for when soap and water isn't available.

Provide masks and other protective equipment.

Some state and local jurisdictions have enacted emergency rules requiring individuals to wear face coverings in public and in certain businesses. Some also require employers to provide such equipment at the employer's expense. Review applicable rules and assess whether employees need to or should wear cloth face coverings, surgical masks, shields, respirators, or other protective equipment. Employers should ensure employees comply in the workplace, if applicable. Also consider training employees on how to properly use protective equipment.

Note: Depending on the job and the circumstances, employers may also be required to provide protective equipment under existing federal and state occupational safety and health regulations.

Require notice of potential exposure.

Employers may ask employees to notify them if they've been in contact with someone who has COVID-19. Also, at this time, the CDC is recommending that people who are close to someone with COVID-19, and develop symptoms of the virus, self-quarantine for at least 14 days. Spell out any notification rules or guidelines in a written policy and continue to monitor guidelines for any changes in notification protocols.

Prepare for potential employee concerns.

Employees may have concerns about returning to work during the pandemic. Employees who refuse to report to work may have protections from adverse action. For example, under the Occupational Safety and Health Act, employees may have the right to refuse to work if all of the following conditions are met:

  • Where possible, they have asked the employer to eliminate the danger, and the employer failed to do so;
  • They genuinely believe that an imminent danger exists;
  • A reasonable person would agree that there is a real danger of death or serious injury; and
  • There isn't enough time, due to the urgency of the hazard, to get it corrected through regular enforcement channels, such as requesting an OSHA inspection.

Section 7 of the National Labor Relations Act (NLRA), which grants employees the right to act together to improve wages and working conditions, may also come into play in this situation.

Comply with rehire requirements.

Make sure all decisions related to hiring employees are neutral and job-related, and not based on protected characteristics, such as age, race, pregnancy or other factors unrelated to the job. If applicable, send "rehire" letters, provide wage payment notices, and furnish other onboarding paperwork to employees who were previously furloughed or laid off. Also evaluate implications on employee benefit plans and whether notices or contribution changes are needed. Additionally, keep in mind that many leave-of-absence laws require employers to treat rehired employees as though they had been continuously employed for the purposes of leave eligibility and access to accrued leave.

Provide leave as required.

Employees may be entitled to leave under federal, state, and local rules for various situations related to COVID-19, even when the crisis begins to recede. For instance, if an employee works for an employer with fewer than 500 employees and is unable to work because their child's school is still closed, they would be entitled to paid leave under the federal Families First Coronavirus Response Act. Review policies, procedures, and supervisor training to ensure compliance with applicable federal, state, and local rules on leave.

Provide reasonable accommodations.

The ADA and similar state laws require employers to provide reasonable accommodations to individuals with disabilities, unless doing so would impose an undue hardship on the employer. An employee with a disability that puts them at high risk for complications from COVID-19 may request a reasonable accommodation to reduce their chances of infection, such as asking to telework, for personal protective equipment, or for paid or unpaid leave if their job isn't conducive to telework. Additionally, if the employer requires employees to wear protective equipment, an employee with a disability may ask for an accommodation if they are unable to comply because of their disability. Prepare to respond to such requests in compliance with applicable laws.

Develop protocols for symptomatic employees.

Develop procedures for situations in which an employee is showing symptoms of COVID-19 in the workplace. If an employee shows symptoms, separate them from other employees, send them home immediately, and direct them to speak with their doctor. Additionally, notify other employees of possible exposure. When informing other employees, maintain confidentiality and don't reveal who had the symptoms. In addition, establish and communicate protocols for returning to work after being symptomatic, following CDC guidelines and applicable laws.

Each workplace is different, so develop a plan for returning to work that is tailored to your particular circumstances, follows applicable guidelines, and ensures safety for your employees, customers, and clients. Guidelines for returning to work continue to evolve; please check back for new developments.