As states continue to enter different phases of reopening, employers are confronted with a lack of uniformity and inconsistent guidance. The landscape can be confusing enough for an employer with a single location, but for those operating across states, or even across county lines, keeping track of what is required will be quite the endeavor.
Business owners and managers must consider an assortment of employment issues affecting health and operations policies as employees transition back to the office. Liability is a major concern on what to do if an employee or customer gets sick or how to screen and test people entering the office.
While many businesses across the United States have closed due to the COVID-19 pandemic, the title and settlement industry has remained resilient. The survey found that 98 percent of respondents reported their office remains open during the crisis. Additionally, only six percent of those surveyed said they’ve temporarily ceased operations at any of their business locations. Title and settlement companied are deemed “essential businesses” by the U.S. Department of Homeland Security and allowed to remain open. Because of this, the issue is more about ensuring the proper policies and procedures are in place to keep everyone safe and healthy.
To develop a plan of action, Elliot Griffin, an associate with the law firm Ballard Spahr, encourages business leaders to establish a team or task force to oversee planning, execution and monitoring. This group will need to conduct a COVID-19 risk/hazard assessment, develop a reopening plan, establishing monitoring and update protocols and documenting the process.
“The task force should look at things from an employee’s perspective from start to finish,” Griffin said. “Things to consider include whether you have a lot of employees taking public transportation, if you’re a tenant in a commercial office how are employees getting in and out of the building, how will they get to bathrooms, while mitigating any exposure to COVID-19.”
While companies don’t want to think about it, Griffin said the reality is that a company may have an employee test positive for COVID-19. A business will want procedures in place on what to do and how to notify employees.
Policies and Protocols
- Social distancing: Griffin said employers should revisit their employee handbook and develop social distancing protocols for the workplace. Social distancing protocols can address a broad range of issues. For example, employers should consider engineering controls and administrative practices to provide at least six feet of space among workers, whether in motion or stationary in their work areas. This may include reconfiguration of workspaces, erection of barriers such as Plexiglas shields, marking floors for directional movement and spacing, and limiting the numbers of individuals who can congregate in common areas. It also may include new schedules and staggered shifts, different and staggered breaks and meal periods, and greater use of virtual meetings.
- Hand washing: Employers should make sure that employees returning to the office have access to facilities to allow for regular hand washing, according to Griffin. If soap and water are not available, hand sanitizer (with at least 60% alcohol content) is acceptable
- Cleaning and disinfecting: Employers should establish updated and enhanced cleaning and disinfection protocols, particularly for high-use and high-touch areas. Griffin said this may be done through the employer’s regular workforce and/or through outside vendors. It may be necessary to hire additional staff or to expand cleaning contracts. Some public health orders mandate consideration of janitorial staffing.
- Workspace and movement (entry, exit, elevators, common space): For employers in leased space and/or in buildings with shared common space, such as elevators, halls, lobbies, etc., the employer should consult with the landlord or building management about how cleaning and disinfection will be handled.
- PPE (face coverings, gloves): Companies will need to think through whether face coverings will be mandatory, Griffin said. Face coverings or shields, respirators, gloves and other personal protective equipment (PPE) may be mandated, depending on the state and industry. For example, some states, including Pennsylvania and New Jersey have adopted public orders mandating face coverings, both for employees and for customers. Others have issued guidance on what are appropriate face coverings and how to make them. Usually, the employer is responsible for providing PPE. Some workers may have health or religious objections to use of PPE, giving rise to the need to consider accommodations under the ADA or Title VII.
- Scheduling, breaks, shifts, interaction: Griffin suggested modifying the work schedule to ensure only a portion of staff is in the office each day.
“Companies that have offices across the country may want to have a workplace coordinator on site,” Griffin recommended. “That person should have an open-door policy for employees to bring concerns.”
A businesses’ COVID team will need to regularly review public orders and guidance from CDC and OSHA. Additionally, there are media and public relations concerns. A company’s reopen plan and how it plans to bring employees back to the office may be newsworthy by local media.
“You’ll want to think about how you’ll respond to media inquiries,” Griffin said. “Internal PR strategy is equally important in how you are communicating with employees. You need to be transparent in all the steps you are taking to prioritize their health and safety.”
- Third Party Agreements: Title and settlement companies may use staffing agencies. Griffin said employers will want to work with these agencies to assess what their requirements will be.
- Lease agreements: In addition, if an office is in a building with a lot of common space, “you’ll want to look at those agreements and determine what your landlord is responsible for and what measures they are instituting,” Griffin said.
- Insurance: Companies may get workers’ compensation claims from employees saying they contracted COVID in the workplace. In some states, employee infections may be covered. Griffin said companies will also want to review coverage under their general liability policy and assess what’s covered if any customers, vendors or third parties who enter your office claim to contracted COVID.
Shannon Farmer, a partner with Ballard Spahr, said one of the main questions the law firm receives is about liability of an employee contracts COVID in the office. She said several wrongful-death lawsuits have been filed against employers by estates of employees claiming negligence and allowing employees to work without safety measures.
“Whether those cases go anywhere or barred by worker’s compensation statutes, there are other areas of liability,” Farmer said.
These relate to the general OSHA Standard of Care, which says employers have a general duty to provide a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” OSHA has not adopted mandatory COVID standards.
Protective Personal Equipment
For the title and settlement industry this mainly involves masks and gloves. Whether a company must require employees to wear masks will be determined by local and state guidance, according to Farmer. The CDC only recommends face coverings. If a company requires masks, this becomes a respiratory program under OSHA and must adhere to its rules.
- Considerations include:
- Whether employers should (or must) provide?
- What kinds (gloves, shields, face coverings)?
- How to procure?
- How much PPE is enough?
- For just employees, or vendors, clients and customers too?
- Limited quantities are available.
“You need to be realistic in thinking about what you’re going to require,” Farmer advised.
Screening and Testing Programs
Employers may consider implementing temperature screenings, health questionnaires and/or infection or antibody testing for COVID-19 if available). Screening, if done, generally should consider all persons entering the workplace, including employees, contractors, vendors and visitors.
Some states, under public health orders, require screenings, especially after a positive COVID-19 incident in the workplace. Any screening and testing measures or health assessment policies should be implemented thoughtfully, with consideration of issues related to the Americans with Disabilities Act (ADA), including confidentiality of medical information, as well as other privacy concerns. Farmer said employers must have separate files and limit access to those on a need-to-know basis. There also may be a OSHA requirement to retain records for up to five years. OSHA recently updated guidance
Any testing or screening measures should be applied to all employees consistently, to prevent any inference of discrimination. If an employee is singled out for testing or questioning about symptoms, the employer must have a “reasonable belief based on objective evidence” that the employee may have the disease. Employers should also be mindful of federal and state anti-discrimination laws, which may apply. Also, some state agencies, including Pennsylvania, have advised employers that its state antidiscrimination statute may be interpreted more broadly than its federal counterpart.
Famer said Ballard Spahr has a client that is developing a platform where employees can login daily, record temperature and answer a couple of questions.
“I would say a lot of employers outside of large companies that have medical facilities onsite are going to have people do self-screening,” Farmer said. Companies will need to determine what they expect employees to report.
In addition, Famer said employers will need to assess whether time spent undergoing screenings (or waiting in line for screening) will be considered compensable time under wage and hour laws.
“Generally, under federal law, the answer is probably going to turn out to be no,” Farmer said. This is due to the way federal law looks at what’s called activities as opposed to things that are integral to the work. However, state laws are different. Some states have ruled going through security checks can be applied to hours worked.
Employers also should establish clear guidelines for when employees will be sent home based on screening and when they can return to work. The CDC has issued guidance on these issues.
Finally, Farmer said there should be consideration of who will conduct screening is important. This may be done by staff or an outside vendor or a combination of the two. Also, the configuration of the screening location(s) must be considered, particularly in light of social distancing protocols. High-traffic screening locations also merit special cleaning and disinfection procedures.
Employees exhibiting COVID-19 symptoms (fever, cough, shortness of breath) should immediately be separated from others and sent home, according to the CDC. Sick employees should not be permitted to return to work until they have met the CDC’s latest criteria to discontinue home isolation. Employees should stay at home at least 10 days have passed since symptoms first appeared and three days since recovery.
“The CDC also advises that employers do not need a doctor’s note or COVID test for employers to return to work,” Griffin said.
Businesses are encouraged to post reminders about the new policies in the workplace, such as reminders to wash hands and social distance, one direction hallways, break/lunchrooms
OSHA and Centers for Disease Control and Prevention (CDC) both have made available a wide variety of signs that can be posted in the workplace to remind employees about health and safety protocols. These or workplace-specific versions should be printed and displayed prominently throughout the workplace. The Department of Labor also requires a poster advising employees of their rights under the Families First Coronavirus Response Act.
Source: ALTA Blog