Trending publication

05.27.2020 | Legal Advisory

This advisory is part of our Moving Forward to the “New Normal” series. Click to watch our webinar, Moving Forward to the “New Normal”: Returning to the Workplace—Key Issues and Strategies for Employers.

On May 18, 2020, Governor Baker outlined a Four Phase Reopening Plan for Massachusetts. Beginning on May 25, 2020, certain businesses – including manufacturing, construction, laboratories, hair salons, and general office spaces – may reopen for business after certifying that they have implemented protocols designed to meet the Governor’s Mandatory Safety Standards for their specific business sector. Below are some frequently asked questions that employers are likely to have as they prepare to reopen their businesses in Phase 1, geared toward non-union, office-based businesses.

Safety Requirements

If I can reopen my business in Phase 1, what does my business need to do with respect to employee safety before I can reopen?

All businesses that may reopen in Phase 1 (and all businesses currently operating as essential businesses) must have developed a written Control Plan outlining how the business will comply with the Governor’s Mandatory Safety Standards, including the sector-specific safety standards established by the Commonwealth, by May 25, 2020. In addition, also by May 25, any customer-facing business must have printed, signed, and posted a Compliance Attestation Poster in an area on the premises visible to visitors and employees. The Commonwealth has also created employer and worker posters that businesses can print and display to remind individuals of the new safety rules.

The Mandatory Safety Standards have four aspects: (1) social distancing, including remaining six feet apart; (2) hygiene protocols, including providing sufficient handwashing and sanitation products throughout the workplace; (3) staffing and operations, including limiting the amount of people throughout the facility; and (4) cleanliness and disinfecting. The safety standards for each sector vary and are subject to specific requirements and guidance that should be consulted to ensure compliance. In addition, employers should ensure that they are compliant with all federal OSHA requirements.

How do I meet the social distancing and staffing requirements in my physical office space?

Meeting the social distancing and staffing requirements requires a two-pronged approach. First, employers must ensure their physical office space is compliant. For open concept office spaces, the space must be divided into individual work areas or pods, with desks or workstations at least six feet apart. Where that layout is impossible, plexiglass barriers must be installed between workstations. Employers should assign individuals to specific work areas to limit movement throughout the office, and should consider imposing one-way traffic in hallways and designating separate entry and exit doors. Access to common areas should be eliminated or minimized (break rooms, eating areas, lobbies, etc.), or reconfigured to maintain six feet of distance between employees, with visual distance markers in place. Shared amenities, like coffee makers, should be removed, and access to high-traffic equipment, such as copy machines, should be limited. Finally, use of confined spaces, such as elevators, should be limited to one person at a time. 

Second, before reopening, Phase 1 employers must ensure that they comply with the Governor’s mandate that businesses limit their occupancy to not more than 25% of either their maximum occupancy level as set forth in a certificate of occupancy or their typical occupancy as of March 1, 2020. Note that businesses that have been operating as essential have until July 1, 2020 to meet this requirement. The Governor has mandated that workers must continue to telework if possible, but if not possible, employers should establish adjusted workplace hours, with staggered shifts, lunch, and rest breaks to limit the number of employees in the office or in any one place at one time. Employers might consider rotating weeks or days of employees in the office or working remotely or establishing workshare arrangements. External meetings should be conducted remotely if possible and internal meetings should be limited and reduced in size. If workers must meet in groups, meeting rooms should be well-ventilated and all employees must be sitting at least six feet apart.

I work in an office building. Do my employees need to wear masks all day?

Employees in office buildings (absent medical condition or disability) should wear masks when social distancing of six feet is not possible. When employees have reached their work areas – sitting at their desks, spaced six feet from other desks, or in their offices, for example – they do not need to wear a mask. Workers on the move should wear masks – for example, entering and exiting the building, waiting in an elevator bank, buying a meal in the cafeteria, or walking by the desks of other employees.

Testing

Can I require a temperature check for my employees before they come to work?

Pursuant to guidance issued by the Equal Employment Opportunity Commission (EEOC), employers may administer a COVID-19 test, take an employee’s temperature, or ask an employee questions specific to COVD-19 – for example, whether the employee has COVID-19, whether the employee has been tested for COVID-19, whether the employee has come into contact with anyone who has been diagnosed with COVID-19, and/or whether the employee may have been experiencing symptoms of COVID-19 (as described by the Centers for Disease Control (CDC)). Employers should ensure that whatever screening practices they choose are applied uniformly and without regarding to any employee’s age, national origin, pregnancy status, or other protected characteristic.

All medical information about employees, including information obtained in a COVID-19 screening process, must be treated as confidential and maintained separately from other personnel records. Medical information may only be disclosed to (1) supervisors or managers who need to determine or administer any necessary work restrictions or accommodations; (2) first aid and safety personnel; and (3) government officials investigating Americans with Disabilities Act (ADA) compliance. Likewise, employers may not disclose or confirm the identity of any individual who has tested positive for COVID-19 when informing other employees of potential exposure to the virus.

Can I send my employee home if he or she has a temperature? What if an employee refuses to take a temperature test?

Yes, employers may send an employee home if he or she has a temperature or refuses to take a temperature test (or engage in an employer’s required COVID-19 screening process). The EEOC has confirmed that an employee with symptoms poses a “direct threat” to the health and safety of other employees.

Do I need to pay my employees for time spent waiting for a test? What about if I send them home with a high temperature or for refusing to take the test?

Whether employers need to pay employees for time spent waiting for a test is an open question and may vary by state. Under the Fair Labor Standards Act (FLSA), employees only must be paid for time spent prior to and after the employees’ “principal activity” if those activities are “integral and indispensable” to the principal activity, an issue which we would anticipate to be litigated in the coming months. The conservative approach would be to treat the time as compensable and pay employees for time spent waiting for screening tests.

Employees who are sent home with a high temperature may be able to take advantage of the paid sick leave provisions of the Families First Coronavirus Response Act (FFCRA), which provide up to 80 hours of paid sick leave when an employee (among other things) is experiencing COVID-19 symptoms and seeking a medical diagnosis, as well as employers’ sick leave policies. Employers should also consider whether Massachusetts’ “reporting pay” law is implicated, depending on the specific factual scenario. This law provides that when an employee who is scheduled to work three or more hours reports for duty and is not provided with the expected hours of work, he or she must be paid for at least three hours at no less than minimum wage. Employees who are sent home for refusing to take a screening test would not be entitled to pay. In that situation, the employee has engaged in insubordinate behavior and can be sent home without pay. 

Vulnerable Populations

Can I require all of my employees over age 65 to continue to telework while bringing other employees back into the office?

No. Employers should ensure that they engage in a non-discriminatory process to determine who should come back to work, without regard to membership in a category protected by law. Requiring all employees over a certain age, or with known pre-existing conditions that may make them more vulnerable if infected with COVID-19, to remain out of work would violate state and federal anti-discrimination laws that protect individuals from discrimination on the basis of age or disability. 

The Governor has maintained that individuals over age 65 or who have pre-existing health conditions should continue to stay home except for essential activities, and mandated that such employees receive “priority consideration” for work options and accommodations. Given this guidance, employers should consider inviting employees to explore accommodations, such as continuing to telework. Employers should consider federal and state guidance on protecting vulnerable populations when deciding on appropriate and temporary accommodations with schedules and workplace setups. 

What do I do if an employee expresses concern about being vulnerable to exposure?

Employers should make every effort to protect employees who are at a higher risk for severe illness (for example, older employees or those with underlying health conditions) through supportive policies and practices, but should leave it to employees to self-identify. If an employee raises concerns about being vulnerable if exposed due to age or pre-existing health conditions, employers should engage in the interactive process to understand if an accommodation can be provided. For the time being, vulnerable employees should be permitted to work from home if at all possible. 

If not possible, employers should attempt to change the employee’s working conditions, including providing additional or enhanced personal protective equipment (PPE), placing physical barriers to separate the vulnerable employee from coworkers or the public, eliminating, reducing, or substituting less critical, non-essential job functions that create more risk of exposure, modifying work schedules, or moving employee workstations. Employers may also consider offering vulnerable employees duties that minimize their contact with customers and other employees (e.g., restocking shelves rather than working as a cashier), if the employee agrees.

What if an employee without risk factors does not want to return to work?

It is likely that many employees will feel some anxiety and discomfort about returning to the workplace, and employers must take care to consider whether the employee may suffer from a diagnosable mental health issue that may subject the employee to the protections of the ADA. Employers should engage in a dialogue with any employee who expresses concern about returning to work for fear of exposure to the virus. 

This advisory was prepared by Natalie Cappellazzo, Chris Lindstrom, Liam O’Connell, and David Rubin in Nutter’s Labor, Employment and Benefits practice group. For more information, please contact Natalie, Chris, Liam, David, or your Nutter attorney at 617.439.2000.

This update is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising.