two workers and manager at warehouse wearing masks (Photo: Shutterstock)

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While employees and employers alike have been eager (for monthsnow) to get back to work as it used to be, the reality is that theworkplace has changed — and possibly for the long term. Speculationabounds that this "new normal" will persist until there is a widelyavailable and effective vaccine. This leaves employers in limbo —juggling the new day-to-day legal concerns and practicaldifficulties, such as enforcing proper social distancing andaddressing refusals to return to work, while trying to maintainproductivity and profitability to keep businesses afloat.

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Advance planning for how to face potential challenges (some ofwhich are described below) before they arise will allow companiesto react thoughtfully, rather than impulsively, and provide thetools to remain vigilant and flexible.

10 potential challenges employers may want toprepare for

1. Ensuring employee health and safety. This isreally the crux of the challenges surrounding return to work formost employers while the number of COVID-19 cases continues torise, largely based on spread by asymptomatic carriers. As aresult, keeping the workplace safe once employees physically return(coupled with being transparent about precautions taken in order toalleviate employee concerns) is of utmost importance.

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Employers need to be proactive about mitigating the risk ofexposing employees to infection in order to slow the continuedspread of COVID-19 and to prevent a second wave of cases once thefirst wave subsides. This includes engaging in the practices thathave been discussed and written about ad nauseam for the past fewmonths, such as making physical modifications in the workspace toreduce contact, changing work schedules to limit the number ofemployees physically present in the office at one time, encouragingsocial distancing, and continuing an enhanced cleaning regime whilealso providing employees with cleaning supplies (such as wipes andhand sanitizer) to allow for more frequent cleaning of high-touchsurfaces.

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Businesses should continue to keep up to date on the currentguidance issued by the Centers for Disease Control and Prevention(CDC), the Occupational Safety and Health Administration (OSHA),and applicable state and local governmental agencies, as therecommendations have changed throughout the pandemic and likelywill continue to do so.

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Companies must also be sure to document and communicate theprecautions taken. Ensuring compliance with these guidelines andkeeping records of what was done will be crucial for any employerfaced with litigation or an agency inspection down the road, andfor those operating in states that have passed (or will pass) lawslimiting liability where the business has taken reasonableprecautions in line with applicable guidance.

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2. Monitoring employee health. Because of thehighly contagious nature of COVID-19, employers covered by theAmericans with Disabilities Act (ADA) have a little more leewaythan usual when it comes to employee health. Employers may askemployees whether they are experiencing symptoms of COVID-19, suchas fever, chills, cough, shortness of breath, or a sore throat.Employers are also permitted to conduct daily health checks, suchas taking employees' temperatures. But to comply with the ADA,employers must still maintain all such information as aconfidential medical record.

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3. Responding to employee illness. In the eventan employee reports a confirmed or suspected case of COVID-19, theemployee should be sent home and should not return to the workplaceuntil the employee meets the CDC-recommended guidance fordiscontinuing isolation. There are symptom-based and test-basedstrategies for both symptomatic and asymptomatic persons, and sincethe guidance has changed during the pandemic, it is important toreview current guidance when discussing return to work with anemployee following home isolation.

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4. Notifying coworkers of potential exposure.Upon learning of an employee's COVID-19 illness, the company shouldimmediately conduct an investigation. Start by asking the employeehow COVID-19 may have been contracted. While respecting employeeprivacy, talk with the employee about activities both at work andoutside of work that could have led to the COVID-19 exposure.

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Review the employee's work environment for potential exposure;this review should be informed by other instances of employees withCOVID-19 at the site. Ask the employee to identify others whoworked within six feet of the employee for 15 minutes or more(currently the standard for a "prolonged period of time") withinthe 48 hours prior to the sick individual's onset of symptoms.Those employees should then be asked to stay home for at least 14days because of their potential exposure to COVID-19.

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5. Conducting an investigation. OSHA requiresemployers to record COVID-19 exposure when the illness is aconfirmed case of COVID-19, is work-related, and meets the generalrecording criteria (i.e., inpatient hospitalization or fatality).Because of the difficulty of determining work-relatedness, OSHA isexercising enforcement discretion to assess employers' efforts inmaking these conclusions.

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In evaluating whether an employer has complied with thisobligation and made a reasonable determination, OSHA will look tothe following: (1) the reasonableness of the employer'sinvestigation into work-relatedness, (2) the evidence available tothe employer, and (3) the evidence that COVID-19 was contracted atwork. Make sure any investigation complies with OSHA'srecommendations in order to reduce the potential for a citationdown the road.

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6. Evaluating availability of leave. When anemployee is sent home because of a suspected or confirmed case ofCOVID-19, another step in the process is determining whether theemployee is entitled to paid leave. The Families First CoronavirusResponse Act (FFCRA) may not be as prevalent in the news as itpreviously was, but it is still in effect until the end of2020.

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The FFCRA requires certain employers to provide employees withpaid sick leave or expanded family and medical leave for specifiedreasons related to COVID-19. These provisions apply to certainpublic employers and to private employers with fewer than 500employees (though small businesses with fewer than 50 employees mayqualify for exemption from the requirement to provide leave due toschool closings or child care unavailability, but not for illness).So if an employee needs time off after testing positive forCOVID-19 (or for any of the other qualifying reasons), remember todetermine whether the employee is eligible for paid leave under theFFCRA and to check whether state law provides for additional paidleave.

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7. Addressing refusals to return to work. Thusfar, refusals to return to work have come in many shapes and sizes,but for employers, the key question to ask when an employeeexpresses a desire not to return is "Why?" How to proceed willdepend on the answer.

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If an employee points to earning more on unemployment than theemployee would earn by returning to work, this is not a legitimatereason to refuse to return. On the other hand, if an employeeexpresses a fear of returning to work, this needs to beexplored.

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A generalized fear will not be enough to permit the employee tocontinue working remotely (unless allowed by the employer), but anemployee who is scared and has been advised by a health careprovider to isolate because the employee is in a vulnerablecategory should be evaluated differently.

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If, for example, an employee expresses a concern about returningto work because the employee relies on public transportation andfears it will be crowded, explore options with the employee, suchas a later start time.

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Employers are encouraged to be flexible in responding toemployee concerns where there is an easy and reasonable fix andADA-covered employers certainly must dive deeper if anaccommodation is requested due to a disability.

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8. Preventing discrimination. What if anemployer knows an employee suffers from a disability that makes theemployee more vulnerable to contracting COVID-19 and wants torequire the employee to continue working from home?

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This is not permissible. An employer cannot unilaterally ban anemployee with an underlying condition from coming to work unlessthe employee's disability poses a direct threat to the employee(which is a high burden).

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And the same goes for pregnant employees and employees who fallinto the higher-risk category based on age. Employees must bepermitted to make their own decisions about return to work and canask for an accommodation if needed.

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9. Completing Form I-9. Of course, this isnothing new for employers, and the employer still must have anemployee complete Section 1 on or before the first day of work andcomplete Section 2 within three business days from the date ofhire.

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During the pandemic, though, employers may inspect Section 2documents remotely, such as by email or video conference, andshould note COVID-19 as the reason for the physical inspectiondelay in the field titled "Additional Information" in Section2.

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The key here, however, is what needs to happen when normaloperations resume. Employees hired using remote verification mustreport to the employer within three business days for in-personverification of identity and employment eligibility documents, andemployers should then add "Documents physically examined" with thedate of inspection in the "Additional Information" field or toSection 3 if the documents presented remotely have expired.

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This requires employers to track when employees are physicallyback at work to ensure presentation of the physical documentsrequired by Form I-9, so putting a system in place to monitoremployee return is critical.

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10. Complying with wage and hour laws. Andfinally, everyone's favorite topic — wage and hour laws. Given thefinancial impact the pandemic and resulting shutdown have had onbusinesses, many employers have made or will make adjustments toemployee pay. When making reductions to a nonexempt employee'shourly rate or salary, it is crucial to ensure the employee stillreceives at least minimum wage for each hour worked.

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Similarly, if an exempt employee's salary has been or will bereduced, most employees must still make at least $684 per week tomaintain the exemption. When revenues pick up, employers shouldalso be careful when making favorable adjustments to employeecompensation. If a "make whole" payment or an incentive bonus ismade to a nonexempt employee, for example, it will have to be addedback into the regular rate for calculation of overtime.

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And, employers should avoid regularly changing salaries ofexempt workers, as this starts to look like the salary was reduceddue to the quantity of work performed (which is impermissible).

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The more prudent path is to leave an exempt employee's salary asis for at least a quarter. The same goes for making changes to anemployee's exemption status — which should be closely monitored toensure exempt duties are still being performed, as job duties maybe in flux during this time.

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For example, if an exempt manager has been primarily performingthe duties of a nonexempt worker due to a reduction in force, theworker may no longer qualify for the executive exemption. But ifthe manager is temporarily changed to nonexempt, be thoughtfulabout changing the classification back (and avoid doing so tooquickly).

Put processes in place to address challenges before theyoccur

In light of all that is happening right now, employers have alot on their plates. It is crucial to put solid processes in placefor addressing the challenges discussed here (as well as the manyother legal and practical considerations currently in play) toallow for a thoughtful response when one (or more) inevitablyhits.

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This requires staying up to date with regularly changingguidance from a variety of sources, communicating with employeesand managers, and documenting precautions taken in the workplace —all on top of performing regular job duties. When this is too muchto juggle, reach out to an employment lawyer for help so no ballsare dropped during this challenging time.

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Maggie Spell is a partner inJones Walker LLP's Labor & EmploymentPractice Group in New Orleans, LA. She helps clients resolveemployment-related disputes and provides day-to-day complianceadvice regarding workplace issues.

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