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Making Plans to Bring Your People Back To Work

Laws and regulations are changing rapidly. After the publication of this article they are subject to change. Check back regularly for updates.

It looks as if the day that most employees can return to work is on the horizon. While this is good news, bringing employees back to work is going to raise a whole new set of issues: issues that may pose more risk of liability to employers than the pandemic itself. The purpose of this update is to identify some of those issues and to offer some ways to address them.

How to start

  • Develop a re-opening plan that includes outreach to customers, clients and employees.

  • Designate a specific person to take ownership of the re-opening plan.

  • Notify your insurance carriers of your plans to re-open.

  • Ensure that all required licenses and permits are up to date.

  • Purchase the necessary equipment, including PPE and social-distancing materials to safely open.

  • Re-configure the worksite to accommodate social distancing if needed.

  • Inform suppliers of the re-opening.

  • Revise agreements/contracts of suppliers, customers and employees as needed.

  • Determine how you will handle employee/customer concerns.

  • Consider making a public announcement concerning the re-opening.


When will you be able to reopen?
  • Comply with state and federal guidance on allowing employees, customers and vendors to return. CDC guidance suggests that businesses should not reopen until they can answer “Yes” to each of the following questions:

    • Are you in a community no longer requiring significant mitigation (or restricting operations to designated essential critical workers)?

    • 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)?

  • The CDC does not recommend reopening until businesses implement ongoing monitoring protocols such as:

    • Requiring sick employees stay home.

    • Establishing routine, daily employee health checks.

    • Monitoring absenteeism and having flexible time off policies.

    • Creating and testing emergency communication channels for employees.

    • Establishing communications with state and local authorities.

The CDC also recommends that employers be prepared to close quickly if needed based on applicable guidelines.

The Occupational Safety and Health Administration Guidance on Preparing Workplaces for COVID-19 https://www.osha.gov/Publications/OSHA3990.pdf includes additional recommendations to take before reopening:

  • Use of healthy hygiene practices.

  • Intensified cleaning, disinfection, and ventilation.

  • Social distancing.

  • Telework and cancellation of non-essential travel.

  • Seating distance of at least 6 feet and staggered gathering (starting/closing) times.

  • Restricted use of any shared items or spaces.

  • Training all staff in all of the safety actions.

Address Employment Laws

  • Update employment policies to comply with recently-issued legislation such as the Families First Coronavirus Response Act.

  • Ensure that re-hiring decisions do not have an adverse impact or treatment on employees of a protected status.

  • Consider National Labor Relations Act and/or the Occupational Safety and Health Act protections for employees who object to returning to work and the safety of the workplace.

  • If you have altered the method/amount of an employee’s compensation or their duties, evaluate if they should be re-classified as non-exempt.

  • The Americans with Disabilities Act requires confidentiality of all employee medical information (such as the results of a temperature check or COVID-19 results).

  • Consider how to address returning employees to lower wages/fewer hours may impact you: IE.

    • forgiveness of PPP loans;

    • employee agreement/contracts; and

    • employee morale.

Consider Worker Safety

  • OSHA requires that employers provide a place of employment that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm."

  • Continue performing work remotely as much as possible.

  • Consider what PPE is necessary for each employee to worker safely.

  • Consider what testing and screening of customers, vendors and employees is necessary and create a system for maintaining this information.

  • Standardize worksite disinfection (before, during and after operating hours).

  • Is it possible to re-schedule shits to reduce the number of workers on site at any one time?

  • Modify work practices that require employees to share tools, equipment and work areas.

  • Publish reminders that employees must practice good hygiene while at work, train employees on the hygiene practices and provide the required materials.

  • Develop a procedure allowing employees to report COVID-19 symptoms/exposure confidentially.

  • Listen to employee concerns and respond reasonably.

Have The Terms of Employment Changed?

Work duties, compensation, schedules, locations of work, etc…. may change when businesses reopen. This may trigger a series of unintended consequences such as breach of contracts or violations of the FLSA.

  • Does the employee have a contract prohibiting such changes?

  • Do the changes require reclassification of the employee’s exempt/non-exempt status?

  • Confirm changes to employee compensation comply with the FLSA.

  • Clearly communicate the changes to impacted employees, preferably in writing.

Consider Requiring New Written Acknowledgments

If you alter an employee’s job duties or compensation, you should consider requiring the employee to sign an acknowledgment of such changes to avoid confusion in the future

Paid Leave

  • Make any necessary changes to the current paid leave policy.

  • Ensure that any time off taken pursuant to the Emergency Paid Sick Leave Act under the Families First Coronavirus Response Act (FFCRA) is properly tracked and accounted for.

  • Calculate employees’ leave balances, paid and unpaid: FMLA, FFCRA, internal leave...

Health Insurance Premium Payment Issues

  • Consider recouping premiums paid by the company while employees were on leave.

Dealing with Employees Who Are Reluctant to Return

  • Create company policy, even if it must be flexible.

  • Consider application of the Occupational Safety and Health Act or the National Labor Relations Act (NLRA) if employees express fear or complain about returning to work.

  • Employees are only entitled to refuse to work under the Occupational Safety and Health Act if they believe they are in imminent danger. Section 13(a) defines “imminent danger” to include “any conditions or practices in any place of employment which are such that a danger exists which could reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act.” The threat must be immediate or imminent, which means that an employee must believe that death or serious physical harm could occur within a short time, for example, before the Occupational Safety and Health Administration (OSHA) could investigate the problem.

  • Beware of employee complaints about returning to work. The NLRA protects employees who engage in “concerted activities for the purpose of … mutual aid or protection.”

  • Develop a communication plan to address employee concerns.

  • Discuss your employee return-to-work plain in orientation for all returning employees.

  • Consider your employee’s practical issues such as childcare when scheduling.

  • Develop your plan regarding continued work from home, either full or part-time.

Ways to Limit Potential Liability

  • Comply with CDC, WHO and state guidance re: allowing employees to return to work.

  • Listen to the concerns of employees, customers and vendors and respond reasonably.

  • Contact your insurance broker to ensure proper coverage.

  • Document your efforts to do all of the above.

This is not intended as a comprehensive list of steps that you must take, but rather as a list of things to consider when planning to bring your people back to work at you office.

Making Plans to Bring Your People Back To Work

Laws and regulations are changing rapidly. After the publication of this article they are subject to change. Check back regularly for updates.

It looks as if the day that most employees can return to work is on the horizon. While this is good news, bringing employees back to work is going to raise a whole new set of issues: issues that may pose more risk of liability to employers than the pandemic itself. The purpose of this update is to identify some of those issues and to offer some ways to address them.

How to start

  • Develop a re-opening plan that includes outreach to customers, clients and employees.

  • Designate a specific person to take ownership of the re-opening plan.

  • Notify your insurance carriers of your plans to re-open.

  • Ensure that all required licenses and permits are up to date.

  • Purchase the necessary equipment, including PPE and social-distancing materials to safely open.

  • Re-configure the worksite to accommodate social distancing if needed.

  • Inform suppliers of the re-opening.

  • Revise agreements/contracts of suppliers, customers and employees as needed.

  • Determine how you will handle employee/customer concerns.

  • Consider making a public announcement concerning the re-opening.


When will you be able to reopen?
  • Comply with state and federal guidance on allowing employees, customers and vendors to return. CDC guidance suggests that businesses should not reopen until they can answer “Yes” to each of the following questions:

    • Are you in a community no longer requiring significant mitigation (or restricting operations to designated essential critical workers)?

    • 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)?

  • The CDC does not recommend reopening until businesses implement ongoing monitoring protocols such as:

    • Requiring sick employees stay home.

    • Establishing routine, daily employee health checks.

    • Monitoring absenteeism and having flexible time off policies.

    • Creating and testing emergency communication channels for employees.

    • Establishing communications with state and local authorities.

The CDC also recommends that employers be prepared to close quickly if needed based on applicable guidelines.

The Occupational Safety and Health Administration Guidance on Preparing Workplaces for COVID-19 https://www.osha.gov/Publications/OSHA3990.pdf includes additional recommendations to take before reopening:

  • Use of healthy hygiene practices.

  • Intensified cleaning, disinfection, and ventilation.

  • Social distancing.

  • Telework and cancellation of non-essential travel.

  • Seating distance of at least 6 feet and staggered gathering (starting/closing) times.

  • Restricted use of any shared items or spaces.

  • Training all staff in all of the safety actions.

Address Employment Laws

  • Update employment policies to comply with recently-issued legislation such as the Families First Coronavirus Response Act.

  • Ensure that re-hiring decisions do not have an adverse impact or treatment on employees of a protected status.

  • Consider National Labor Relations Act and/or the Occupational Safety and Health Act protections for employees who object to returning to work and the safety of the workplace.

  • If you have altered the method/amount of an employee’s compensation or their duties, evaluate if they should be re-classified as non-exempt.

  • The Americans with Disabilities Act requires confidentiality of all employee medical information (such as the results of a temperature check or COVID-19 results).

  • Consider how to address returning employees to lower wages/fewer hours may impact you: IE.

    • forgiveness of PPP loans;

    • employee agreement/contracts; and

    • employee morale.

Consider Worker Safety

  • OSHA requires that employers provide a place of employment that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm."

  • Continue performing work remotely as much as possible.

  • Consider what PPE is necessary for each employee to worker safely.

  • Consider what testing and screening of customers, vendors and employees is necessary and create a system for maintaining this information.

  • Standardize worksite disinfection (before, during and after operating hours).

  • Is it possible to re-schedule shits to reduce the number of workers on site at any one time?

  • Modify work practices that require employees to share tools, equipment and work areas.

  • Publish reminders that employees must practice good hygiene while at work, train employees on the hygiene practices and provide the required materials.

  • Develop a procedure allowing employees to report COVID-19 symptoms/exposure confidentially.

  • Listen to employee concerns and respond reasonably.

Have The Terms of Employment Changed?

Work duties, compensation, schedules, locations of work, etc…. may change when businesses reopen. This may trigger a series of unintended consequences such as breach of contracts or violations of the FLSA.

  • Does the employee have a contract prohibiting such changes?

  • Do the changes require reclassification of the employee’s exempt/non-exempt status?

  • Confirm changes to employee compensation comply with the FLSA.

  • Clearly communicate the changes to impacted employees, preferably in writing.

Consider Requiring New Written Acknowledgments

If you alter an employee’s job duties or compensation, you should consider requiring the employee to sign an acknowledgment of such changes to avoid confusion in the future

Paid Leave

  • Make any necessary changes to the current paid leave policy.

  • Ensure that any time off taken pursuant to the Emergency Paid Sick Leave Act under the Families First Coronavirus Response Act (FFCRA) is properly tracked and accounted for.

  • Calculate employees’ leave balances, paid and unpaid: FMLA, FFCRA, internal leave...

Health Insurance Premium Payment Issues

  • Consider recouping premiums paid by the company while employees were on leave.

Dealing with Employees Who Are Reluctant to Return

  • Create company policy, even if it must be flexible.

  • Consider application of the Occupational Safety and Health Act or the National Labor Relations Act (NLRA) if employees express fear or complain about returning to work.

  • Employees are only entitled to refuse to work under the Occupational Safety and Health Act if they believe they are in imminent danger. Section 13(a) defines “imminent danger” to include “any conditions or practices in any place of employment which are such that a danger exists which could reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act.” The threat must be immediate or imminent, which means that an employee must believe that death or serious physical harm could occur within a short time, for example, before the Occupational Safety and Health Administration (OSHA) could investigate the problem.

  • Beware of employee complaints about returning to work. The NLRA protects employees who engage in “concerted activities for the purpose of … mutual aid or protection.”

  • Develop a communication plan to address employee concerns.

  • Discuss your employee return-to-work plain in orientation for all returning employees.

  • Consider your employee’s practical issues such as childcare when scheduling.

  • Develop your plan regarding continued work from home, either full or part-time.

Ways to Limit Potential Liability

  • Comply with CDC, WHO and state guidance re: allowing employees to return to work.

  • Listen to the concerns of employees, customers and vendors and respond reasonably.

  • Contact your insurance broker to ensure proper coverage.

  • Document your efforts to do all of the above.

This is not intended as a comprehensive list of steps that you must take, but rather as a list of things to consider when planning to bring your people back to work at you office.

Making Plans to Bring Your People Back To Work

Laws and regulations are changing rapidly. After the publication of this article they are subject to change. Check back regularly for updates.

It looks as if the day that most employees can return to work is on the horizon. While this is good news, bringing employees back to work is going to raise a whole new set of issues: issues that may pose more risk of liability to employers than the pandemic itself. The purpose of this update is to identify some of those issues and to offer some ways to address them.

How to start

  • Develop a re-opening plan that includes outreach to customers, clients and employees.

  • Designate a specific person to take ownership of the re-opening plan.

  • Notify your insurance carriers of your plans to re-open.

  • Ensure that all required licenses and permits are up to date.

  • Purchase the necessary equipment, including PPE and social-distancing materials to safely open.

  • Re-configure the worksite to accommodate social distancing if needed.

  • Inform suppliers of the re-opening.

  • Revise agreements/contracts of suppliers, customers and employees as needed.

  • Determine how you will handle employee/customer concerns.

  • Consider making a public announcement concerning the re-opening.


When will you be able to reopen?
  • Comply with state and federal guidance on allowing employees, customers and vendors to return. CDC guidance suggests that businesses should not reopen until they can answer “Yes” to each of the following questions:

    • Are you in a community no longer requiring significant mitigation (or restricting operations to designated essential critical workers)?

    • 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)?

  • The CDC does not recommend reopening until businesses implement ongoing monitoring protocols such as:

    • Requiring sick employees stay home.

    • Establishing routine, daily employee health checks.

    • Monitoring absenteeism and having flexible time off policies.

    • Creating and testing emergency communication channels for employees.

    • Establishing communications with state and local authorities.

The CDC also recommends that employers be prepared to close quickly if needed based on applicable guidelines.

The Occupational Safety and Health Administration Guidance on Preparing Workplaces for COVID-19 https://www.osha.gov/Publications/OSHA3990.pdf includes additional recommendations to take before reopening:

  • Use of healthy hygiene practices.

  • Intensified cleaning, disinfection, and ventilation.

  • Social distancing.

  • Telework and cancellation of non-essential travel.

  • Seating distance of at least 6 feet and staggered gathering (starting/closing) times.

  • Restricted use of any shared items or spaces.

  • Training all staff in all of the safety actions.

Address Employment Laws

  • Update employment policies to comply with recently-issued legislation such as the Families First Coronavirus Response Act.

  • Ensure that re-hiring decisions do not have an adverse impact or treatment on employees of a protected status.

  • Consider National Labor Relations Act and/or the Occupational Safety and Health Act protections for employees who object to returning to work and the safety of the workplace.

  • If you have altered the method/amount of an employee’s compensation or their duties, evaluate if they should be re-classified as non-exempt.

  • The Americans with Disabilities Act requires confidentiality of all employee medical information (such as the results of a temperature check or COVID-19 results).

  • Consider how to address returning employees to lower wages/fewer hours may impact you: IE.

    • forgiveness of PPP loans;

    • employee agreement/contracts; and

    • employee morale.

Consider Worker Safety

  • OSHA requires that employers provide a place of employment that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm."

  • Continue performing work remotely as much as possible.

  • Consider what PPE is necessary for each employee to worker safely.

  • Consider what testing and screening of customers, vendors and employees is necessary and create a system for maintaining this information.

  • Standardize worksite disinfection (before, during and after operating hours).

  • Is it possible to re-schedule shits to reduce the number of workers on site at any one time?

  • Modify work practices that require employees to share tools, equipment and work areas.

  • Publish reminders that employees must practice good hygiene while at work, train employees on the hygiene practices and provide the required materials.

  • Develop a procedure allowing employees to report COVID-19 symptoms/exposure confidentially.

  • Listen to employee concerns and respond reasonably.

Have The Terms of Employment Changed?

Work duties, compensation, schedules, locations of work, etc…. may change when businesses reopen. This may trigger a series of unintended consequences such as breach of contracts or violations of the FLSA.

  • Does the employee have a contract prohibiting such changes?

  • Do the changes require reclassification of the employee’s exempt/non-exempt status?

  • Confirm changes to employee compensation comply with the FLSA.

  • Clearly communicate the changes to impacted employees, preferably in writing.

Consider Requiring New Written Acknowledgments

If you alter an employee’s job duties or compensation, you should consider requiring the employee to sign an acknowledgment of such changes to avoid confusion in the future

Paid Leave

  • Make any necessary changes to the current paid leave policy.

  • Ensure that any time off taken pursuant to the Emergency Paid Sick Leave Act under the Families First Coronavirus Response Act (FFCRA) is properly tracked and accounted for.

  • Calculate employees’ leave balances, paid and unpaid: FMLA, FFCRA, internal leave...

Health Insurance Premium Payment Issues

  • Consider recouping premiums paid by the company while employees were on leave.

Dealing with Employees Who Are Reluctant to Return

  • Create company policy, even if it must be flexible.

  • Consider application of the Occupational Safety and Health Act or the National Labor Relations Act (NLRA) if employees express fear or complain about returning to work.

  • Employees are only entitled to refuse to work under the Occupational Safety and Health Act if they believe they are in imminent danger. Section 13(a) defines “imminent danger” to include “any conditions or practices in any place of employment which are such that a danger exists which could reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act.” The threat must be immediate or imminent, which means that an employee must believe that death or serious physical harm could occur within a short time, for example, before the Occupational Safety and Health Administration (OSHA) could investigate the problem.

  • Beware of employee complaints about returning to work. The NLRA protects employees who engage in “concerted activities for the purpose of … mutual aid or protection.”

  • Develop a communication plan to address employee concerns.

  • Discuss your employee return-to-work plain in orientation for all returning employees.

  • Consider your employee’s practical issues such as childcare when scheduling.

  • Develop your plan regarding continued work from home, either full or part-time.

Ways to Limit Potential Liability

  • Comply with CDC, WHO and state guidance re: allowing employees to return to work.

  • Listen to the concerns of employees, customers and vendors and respond reasonably.

  • Contact your insurance broker to ensure proper coverage.

  • Document your efforts to do all of the above.

This is not intended as a comprehensive list of steps that you must take, but rather as a list of things to consider when planning to bring your people back to work at you office.

Making Plans to Bring Your People Back To Work

Laws and regulations are changing rapidly. After the publication of this article they are subject to change. Check back regularly for updates.

It looks as if the day that most employees can return to work is on the horizon. While this is good news, bringing employees back to work is going to raise a whole new set of issues: issues that may pose more risk of liability to employers than the pandemic itself. The purpose of this update is to identify some of those issues and to offer some ways to address them.

How to start

  • Develop a re-opening plan that includes outreach to customers, clients and employees.

  • Designate a specific person to take ownership of the re-opening plan.

  • Notify your insurance carriers of your plans to re-open.

  • Ensure that all required licenses and permits are up to date.

  • Purchase the necessary equipment, including PPE and social-distancing materials to safely open.

  • Re-configure the worksite to accommodate social distancing if needed.

  • Inform suppliers of the re-opening.

  • Revise agreements/contracts of suppliers, customers and employees as needed.

  • Determine how you will handle employee/customer concerns.

  • Consider making a public announcement concerning the re-opening.


When will you be able to reopen?
  • Comply with state and federal guidance on allowing employees, customers and vendors to return. CDC guidance suggests that businesses should not reopen until they can answer “Yes” to each of the following questions:

    • Are you in a community no longer requiring significant mitigation (or restricting operations to designated essential critical workers)?

    • 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)?

  • The CDC does not recommend reopening until businesses implement ongoing monitoring protocols such as:

    • Requiring sick employees stay home.

    • Establishing routine, daily employee health checks.

    • Monitoring absenteeism and having flexible time off policies.

    • Creating and testing emergency communication channels for employees.

    • Establishing communications with state and local authorities.

The CDC also recommends that employers be prepared to close quickly if needed based on applicable guidelines.

The Occupational Safety and Health Administration Guidance on Preparing Workplaces for COVID-19 https://www.osha.gov/Publications/OSHA3990.pdf includes additional recommendations to take before reopening:

  • Use of healthy hygiene practices.

  • Intensified cleaning, disinfection, and ventilation.

  • Social distancing.

  • Telework and cancellation of non-essential travel.

  • Seating distance of at least 6 feet and staggered gathering (starting/closing) times.

  • Restricted use of any shared items or spaces.

  • Training all staff in all of the safety actions.

Address Employment Laws

  • Update employment policies to comply with recently-issued legislation such as the Families First Coronavirus Response Act.

  • Ensure that re-hiring decisions do not have an adverse impact or treatment on employees of a protected status.

  • Consider National Labor Relations Act and/or the Occupational Safety and Health Act protections for employees who object to returning to work and the safety of the workplace.

  • If you have altered the method/amount of an employee’s compensation or their duties, evaluate if they should be re-classified as non-exempt.

  • The Americans with Disabilities Act requires confidentiality of all employee medical information (such as the results of a temperature check or COVID-19 results).

  • Consider how to address returning employees to lower wages/fewer hours may impact you: IE.

    • forgiveness of PPP loans;

    • employee agreement/contracts; and

    • employee morale.

Consider Worker Safety

  • OSHA requires that employers provide a place of employment that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm."

  • Continue performing work remotely as much as possible.

  • Consider what PPE is necessary for each employee to worker safely.

  • Consider what testing and screening of customers, vendors and employees is necessary and create a system for maintaining this information.

  • Standardize worksite disinfection (before, during and after operating hours).

  • Is it possible to re-schedule shits to reduce the number of workers on site at any one time?

  • Modify work practices that require employees to share tools, equipment and work areas.

  • Publish reminders that employees must practice good hygiene while at work, train employees on the hygiene practices and provide the required materials.

  • Develop a procedure allowing employees to report COVID-19 symptoms/exposure confidentially.

  • Listen to employee concerns and respond reasonably.

Have The Terms of Employment Changed?

Work duties, compensation, schedules, locations of work, etc…. may change when businesses reopen. This may trigger a series of unintended consequences such as breach of contracts or violations of the FLSA.

  • Does the employee have a contract prohibiting such changes?

  • Do the changes require reclassification of the employee’s exempt/non-exempt status?

  • Confirm changes to employee compensation comply with the FLSA.

  • Clearly communicate the changes to impacted employees, preferably in writing.

Consider Requiring New Written Acknowledgments

If you alter an employee’s job duties or compensation, you should consider requiring the employee to sign an acknowledgment of such changes to avoid confusion in the future

Paid Leave

  • Make any necessary changes to the current paid leave policy.

  • Ensure that any time off taken pursuant to the Emergency Paid Sick Leave Act under the Families First Coronavirus Response Act (FFCRA) is properly tracked and accounted for.

  • Calculate employees’ leave balances, paid and unpaid: FMLA, FFCRA, internal leave...

Health Insurance Premium Payment Issues

  • Consider recouping premiums paid by the company while employees were on leave.

Dealing with Employees Who Are Reluctant to Return

  • Create company policy, even if it must be flexible.

  • Consider application of the Occupational Safety and Health Act or the National Labor Relations Act (NLRA) if employees express fear or complain about returning to work.

  • Employees are only entitled to refuse to work under the Occupational Safety and Health Act if they believe they are in imminent danger. Section 13(a) defines “imminent danger” to include “any conditions or practices in any place of employment which are such that a danger exists which could reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act.” The threat must be immediate or imminent, which means that an employee must believe that death or serious physical harm could occur within a short time, for example, before the Occupational Safety and Health Administration (OSHA) could investigate the problem.

  • Beware of employee complaints about returning to work. The NLRA protects employees who engage in “concerted activities for the purpose of … mutual aid or protection.”

  • Develop a communication plan to address employee concerns.

  • Discuss your employee return-to-work plain in orientation for all returning employees.

  • Consider your employee’s practical issues such as childcare when scheduling.

  • Develop your plan regarding continued work from home, either full or part-time.

Ways to Limit Potential Liability

  • Comply with CDC, WHO and state guidance re: allowing employees to return to work.

  • Listen to the concerns of employees, customers and vendors and respond reasonably.

  • Contact your insurance broker to ensure proper coverage.

  • Document your efforts to do all of the above.

This is not intended as a comprehensive list of steps that you must take, but rather as a list of things to consider when planning to bring your people back to work at you office.

Making Plans to Bring Your People Back To Work

Laws and regulations are changing rapidly. After the publication of this article they are subject to change. Check back regularly for updates.

It looks as if the day that most employees can return to work is on the horizon. While this is good news, bringing employees back to work is going to raise a whole new set of issues: issues that may pose more risk of liability to employers than the pandemic itself. The purpose of this update is to identify some of those issues and to offer some ways to address them.

How to start

  • Develop a re-opening plan that includes outreach to customers, clients and employees.

  • Designate a specific person to take ownership of the re-opening plan.

  • Notify your insurance carriers of your plans to re-open.

  • Ensure that all required licenses and permits are up to date.

  • Purchase the necessary equipment, including PPE and social-distancing materials to safely open.

  • Re-configure the worksite to accommodate social distancing if needed.

  • Inform suppliers of the re-opening.

  • Revise agreements/contracts of suppliers, customers and employees as needed.

  • Determine how you will handle employee/customer concerns.

  • Consider making a public announcement concerning the re-opening.


When will you be able to reopen?
  • Comply with state and federal guidance on allowing employees, customers and vendors to return. CDC guidance suggests that businesses should not reopen until they can answer “Yes” to each of the following questions:

    • Are you in a community no longer requiring significant mitigation (or restricting operations to designated essential critical workers)?

    • 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)?

  • The CDC does not recommend reopening until businesses implement ongoing monitoring protocols such as:

    • Requiring sick employees stay home.

    • Establishing routine, daily employee health checks.

    • Monitoring absenteeism and having flexible time off policies.

    • Creating and testing emergency communication channels for employees.

    • Establishing communications with state and local authorities.

The CDC also recommends that employers be prepared to close quickly if needed based on applicable guidelines.

The Occupational Safety and Health Administration Guidance on Preparing Workplaces for COVID-19 https://www.osha.gov/Publications/OSHA3990.pdf includes additional recommendations to take before reopening:

  • Use of healthy hygiene practices.

  • Intensified cleaning, disinfection, and ventilation.

  • Social distancing.

  • Telework and cancellation of non-essential travel.

  • Seating distance of at least 6 feet and staggered gathering (starting/closing) times.

  • Restricted use of any shared items or spaces.

  • Training all staff in all of the safety actions.

Address Employment Laws

  • Update employment policies to comply with recently-issued legislation such as the Families First Coronavirus Response Act.

  • Ensure that re-hiring decisions do not have an adverse impact or treatment on employees of a protected status.

  • Consider National Labor Relations Act and/or the Occupational Safety and Health Act protections for employees who object to returning to work and the safety of the workplace.

  • If you have altered the method/amount of an employee’s compensation or their duties, evaluate if they should be re-classified as non-exempt.

  • The Americans with Disabilities Act requires confidentiality of all employee medical information (such as the results of a temperature check or COVID-19 results).

  • Consider how to address returning employees to lower wages/fewer hours may impact you: IE.

    • forgiveness of PPP loans;

    • employee agreement/contracts; and

    • employee morale.

Consider Worker Safety

  • OSHA requires that employers provide a place of employment that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm."

  • Continue performing work remotely as much as possible.

  • Consider what PPE is necessary for each employee to worker safely.

  • Consider what testing and screening of customers, vendors and employees is necessary and create a system for maintaining this information.

  • Standardize worksite disinfection (before, during and after operating hours).

  • Is it possible to re-schedule shits to reduce the number of workers on site at any one time?

  • Modify work practices that require employees to share tools, equipment and work areas.

  • Publish reminders that employees must practice good hygiene while at work, train employees on the hygiene practices and provide the required materials.

  • Develop a procedure allowing employees to report COVID-19 symptoms/exposure confidentially.

  • Listen to employee concerns and respond reasonably.

Have The Terms of Employment Changed?

Work duties, compensation, schedules, locations of work, etc…. may change when businesses reopen. This may trigger a series of unintended consequences such as breach of contracts or violations of the FLSA.

  • Does the employee have a contract prohibiting such changes?

  • Do the changes require reclassification of the employee’s exempt/non-exempt status?

  • Confirm changes to employee compensation comply with the FLSA.

  • Clearly communicate the changes to impacted employees, preferably in writing.

Consider Requiring New Written Acknowledgments

If you alter an employee’s job duties or compensation, you should consider requiring the employee to sign an acknowledgment of such changes to avoid confusion in the future

Paid Leave

  • Make any necessary changes to the current paid leave policy.

  • Ensure that any time off taken pursuant to the Emergency Paid Sick Leave Act under the Families First Coronavirus Response Act (FFCRA) is properly tracked and accounted for.

  • Calculate employees’ leave balances, paid and unpaid: FMLA, FFCRA, internal leave...

Health Insurance Premium Payment Issues

  • Consider recouping premiums paid by the company while employees were on leave.

Dealing with Employees Who Are Reluctant to Return

  • Create company policy, even if it must be flexible.

  • Consider application of the Occupational Safety and Health Act or the National Labor Relations Act (NLRA) if employees express fear or complain about returning to work.

  • Employees are only entitled to refuse to work under the Occupational Safety and Health Act if they believe they are in imminent danger. Section 13(a) defines “imminent danger” to include “any conditions or practices in any place of employment which are such that a danger exists which could reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act.” The threat must be immediate or imminent, which means that an employee must believe that death or serious physical harm could occur within a short time, for example, before the Occupational Safety and Health Administration (OSHA) could investigate the problem.

  • Beware of employee complaints about returning to work. The NLRA protects employees who engage in “concerted activities for the purpose of … mutual aid or protection.”

  • Develop a communication plan to address employee concerns.

  • Discuss your employee return-to-work plain in orientation for all returning employees.

  • Consider your employee’s practical issues such as childcare when scheduling.

  • Develop your plan regarding continued work from home, either full or part-time.

Ways to Limit Potential Liability

  • Comply with CDC, WHO and state guidance re: allowing employees to return to work.

  • Listen to the concerns of employees, customers and vendors and respond reasonably.

  • Contact your insurance broker to ensure proper coverage.

  • Document your efforts to do all of the above.

This is not intended as a comprehensive list of steps that you must take, but rather as a list of things to consider when planning to bring your people back to work at you office.

Making Plans to Bring Your People Back To Work

Laws and regulations are changing rapidly. After the publication of this article they are subject to change. Check back regularly for updates.

It looks as if the day that most employees can return to work is on the horizon. While this is good news, bringing employees back to work is going to raise a whole new set of issues: issues that may pose more risk of liability to employers than the pandemic itself. The purpose of this update is to identify some of those issues and to offer some ways to address them.

How to start

  • Develop a re-opening plan that includes outreach to customers, clients and employees.

  • Designate a specific person to take ownership of the re-opening plan.

  • Notify your insurance carriers of your plans to re-open.

  • Ensure that all required licenses and permits are up to date.

  • Purchase the necessary equipment, including PPE and social-distancing materials to safely open.

  • Re-configure the worksite to accommodate social distancing if needed.

  • Inform suppliers of the re-opening.

  • Revise agreements/contracts of suppliers, customers and employees as needed.

  • Determine how you will handle employee/customer concerns.

  • Consider making a public announcement concerning the re-opening.


When will you be able to reopen?
  • Comply with state and federal guidance on allowing employees, customers and vendors to return. CDC guidance suggests that businesses should not reopen until they can answer “Yes” to each of the following questions:

    • Are you in a community no longer requiring significant mitigation (or restricting operations to designated essential critical workers)?

    • 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)?

  • The CDC does not recommend reopening until businesses implement ongoing monitoring protocols such as:

    • Requiring sick employees stay home.

    • Establishing routine, daily employee health checks.

    • Monitoring absenteeism and having flexible time off policies.

    • Creating and testing emergency communication channels for employees.

    • Establishing communications with state and local authorities.

The CDC also recommends that employers be prepared to close quickly if needed based on applicable guidelines.

The Occupational Safety and Health Administration Guidance on Preparing Workplaces for COVID-19 https://www.osha.gov/Publications/OSHA3990.pdf includes additional recommendations to take before reopening:

  • Use of healthy hygiene practices.

  • Intensified cleaning, disinfection, and ventilation.

  • Social distancing.

  • Telework and cancellation of non-essential travel.

  • Seating distance of at least 6 feet and staggered gathering (starting/closing) times.

  • Restricted use of any shared items or spaces.

  • Training all staff in all of the safety actions.

Address Employment Laws

  • Update employment policies to comply with recently-issued legislation such as the Families First Coronavirus Response Act.

  • Ensure that re-hiring decisions do not have an adverse impact or treatment on employees of a protected status.

  • Consider National Labor Relations Act and/or the Occupational Safety and Health Act protections for employees who object to returning to work and the safety of the workplace.

  • If you have altered the method/amount of an employee’s compensation or their duties, evaluate if they should be re-classified as non-exempt.

  • The Americans with Disabilities Act requires confidentiality of all employee medical information (such as the results of a temperature check or COVID-19 results).

  • Consider how to address returning employees to lower wages/fewer hours may impact you: IE.

    • forgiveness of PPP loans;

    • employee agreement/contracts; and

    • employee morale.

Consider Worker Safety

  • OSHA requires that employers provide a place of employment that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm."

  • Continue performing work remotely as much as possible.

  • Consider what PPE is necessary for each employee to worker safely.

  • Consider what testing and screening of customers, vendors and employees is necessary and create a system for maintaining this information.

  • Standardize worksite disinfection (before, during and after operating hours).

  • Is it possible to re-schedule shits to reduce the number of workers on site at any one time?

  • Modify work practices that require employees to share tools, equipment and work areas.

  • Publish reminders that employees must practice good hygiene while at work, train employees on the hygiene practices and provide the required materials.

  • Develop a procedure allowing employees to report COVID-19 symptoms/exposure confidentially.

  • Listen to employee concerns and respond reasonably.

Have The Terms of Employment Changed?

Work duties, compensation, schedules, locations of work, etc…. may change when businesses reopen. This may trigger a series of unintended consequences such as breach of contracts or violations of the FLSA.

  • Does the employee have a contract prohibiting such changes?

  • Do the changes require reclassification of the employee’s exempt/non-exempt status?

  • Confirm changes to employee compensation comply with the FLSA.

  • Clearly communicate the changes to impacted employees, preferably in writing.

Consider Requiring New Written Acknowledgments

If you alter an employee’s job duties or compensation, you should consider requiring the employee to sign an acknowledgment of such changes to avoid confusion in the future

Paid Leave

  • Make any necessary changes to the current paid leave policy.

  • Ensure that any time off taken pursuant to the Emergency Paid Sick Leave Act under the Families First Coronavirus Response Act (FFCRA) is properly tracked and accounted for.

  • Calculate employees’ leave balances, paid and unpaid: FMLA, FFCRA, internal leave...

Health Insurance Premium Payment Issues

  • Consider recouping premiums paid by the company while employees were on leave.

Dealing with Employees Who Are Reluctant to Return

  • Create company policy, even if it must be flexible.

  • Consider application of the Occupational Safety and Health Act or the National Labor Relations Act (NLRA) if employees express fear or complain about returning to work.

  • Employees are only entitled to refuse to work under the Occupational Safety and Health Act if they believe they are in imminent danger. Section 13(a) defines “imminent danger” to include “any conditions or practices in any place of employment which are such that a danger exists which could reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act.” The threat must be immediate or imminent, which means that an employee must believe that death or serious physical harm could occur within a short time, for example, before the Occupational Safety and Health Administration (OSHA) could investigate the problem.

  • Beware of employee complaints about returning to work. The NLRA protects employees who engage in “concerted activities for the purpose of … mutual aid or protection.”

  • Develop a communication plan to address employee concerns.

  • Discuss your employee return-to-work plain in orientation for all returning employees.

  • Consider your employee’s practical issues such as childcare when scheduling.

  • Develop your plan regarding continued work from home, either full or part-time.

Ways to Limit Potential Liability

  • Comply with CDC, WHO and state guidance re: allowing employees to return to work.

  • Listen to the concerns of employees, customers and vendors and respond reasonably.

  • Contact your insurance broker to ensure proper coverage.

  • Document your efforts to do all of the above.

This is not intended as a comprehensive list of steps that you must take, but rather as a list of things to consider when planning to bring your people back to work at you office.

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