June 24, 2020
To manage compliance and legal risks related to reopening offices, consider these 3 core values and 4 action items.
Many organizations were forced to furlough or lay off employees during the initial phases of the pandemic. Decisions about which employees will be invited to return or be rehired exposes your nonprofit to legal risk. Rehiring decisions should be evaluated with unbiased factors such as seniority and operational needs in mind. If your nonprofit used a set of determining factors to execute pandemic related layoffs, the same factors should be used when you reinstate employees.Take extra care that your hiring decisions don’t have a disparate impact on staff in protected classes, or staff who are at higher risk for COVID-19 (e.g., individuals over 65 or pregnant employees). Finally, consult your state and local guidelines for amendments to protected categories of employees specific to the pandemic.
Ask for volunteers from various functional groups in your organization (Legal, HR, Risk, Facilities, Programs, Fundraising, etc.) to serve on a Resumption Team. This group of professionals brings essential perspectives and a risk lens to your return to work plans. In addition to assessing the effectiveness of plans and procedures your organization has developed to bring back employees and restart services, this team can monitor compliance requirements. Regulations and executive orders evolve rapidly. By having a small team focused on scanning public agency channels for information, you can ensure that your organization will be poised to comply with changing mandates and follow evolving guidelines.
It’s important to remember that reopening phases are taking place as the country continues to grapple with the virus. The focus is on resuming services and programs while being mindful that the virus is still a present contagion. For example, before reopening your doors, create an action plan that details how your organization will respond if an employee is diagnosed with COVID-19. This plan should explain your procedures for deep cleaning offices and facilities, procedures for contact tracking (which may be required by local regulations), and the process for handling leave requests. Be aware that your employees may be entitled to paid sick and family medical leave under the Families First Coronavirus Response Act (FFCRA) or other similar legislation at the state and local levels.
Take Appropriate Action
Report as required. OSHA has established COVID-19 as a “recognized hazard.” This means that employers must report when employees test positive for the virus when the employer believes that “it is more likely than not that exposure in the workplace played a causal role.” This reporting guidance applies to most organizations due to the highly contagious nature of the virus. In addition to OSHA requirements, state and local authorities may also have reporting requirements should employees test positive for COVID-19. Your organization should consult with local health authorities to ensure that the proper procedures are identified and followed in the event one of your employees becomes ill.
Protect employees. While there are many concerns about reopening offices, employee safety should be your primary concern. We explored strategies related to staff safety last month in our Risk eNews “Take 10: Resume and Thrive Strategies.” However, you may be obligated to offer procedures such as extended teleworking as a reasonable accommodation for high-risk employees. According to “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act” issued by the EEOC and revised to include guidance specific to COVID-19, “Telework is an effective infection-control strategy that is also familiar to ADA-covered employers as a reasonable accommodation. In addition, employees with disabilities that put them at high risk for complications of pandemic influenza may request telework as a reasonable accommodation to reduce their chances of infection during a pandemic.”
To protect the safety of team members returning to the office, adopt a plan to reduce the total number of employees on-site at any given time. For example, consider asking employees to work with alternating schedules (one week in the office, two weeks telework), staggering start and end times, or utilizing shifts.
Ensure compliance. Federal, state, and local authorities have developed guidelines that govern reopening procedures. Your jurisdiction may have metrics that must be met before allowing employees to return to work. It’s prudent to review all applicable documentation for requirements. These regulations should offer your organization clarity on protective measures or personal protective equipment (PPE) employers are required to provide. For example, the CDC has developed a Resuming Business Toolkit, which provides employers with up to date resources, strategies, and factsheets.
Scale up cautiously. Resist the urge to reopen quickly. Your offices may require changes to the physical layout to maximize the efficacy of social distancing. Your offices and facilities should be deep cleaned, and additional sanitizing procedures should be established. Make the decision to reopen only after you have considered multiple site safety and sanitation issues. Areas of concern include any shared-use areas or equipment such as: stairwells, reception areas, kitchens and cafeterias, restrooms, copiers/scanners, and shared office equipment.
As the COVID-19 pandemic has proved to be a rapidly evolving situation, it’s essential to continue to monitor communications from state, local, and public health officials that may impact your plans for reopening. If you have any questions or concerns regarding the legal risks of your reopening strategies, we encourage you to consult your in-house or external legal counsel. Thoughtful and cautious reopening is key to safeguarding your mission.
- “COVID-19 Lawsuits and Claims Increasing in Courts Nationwide,” Littler
- “Returning to the Workplace: Legal Obligations and Risks,” ASAE
- “Employers Should Be Mindful of New Employment Law Risks Created by COVID-19,” Wilson Sonsini
- “COVID-19: Best practice considerations for resuming work in an office setting,” Norton Rose Fulbright
- “Back to Business After COVID-19: Legal Considerations When Rehiring Employees,” Fox Rothschild, LLC
The Nonprofit Risk Management Center welcomes your comments and questions about legal risks of resumption, at 703.777.3504 or email@example.com.