Webinar Title
Our Moderator Dan Meyer Publisher/Owner
Our Presenters Gary Glader Verna M. Shavlik, ASID, WRID Laurie E. Meyer President Director of Interior Design Services Employment and Litigation Attorney Horton Safety Consultants Creative Business Interiors Davis|Kuelthau, s.c.
Laurie E. Meyer Davis|Kuelthau, s.c.
Terminology: Furlough vs. Layoff • Furlough: No precise legal definition; Generally refers to a forced period of time off work without pay intended to be of temporary duration. • Employee remains employed and typically remains eligible for benefits (depending on terms of employer’s policies/plan docs). • Make sure you have accurately and consistently communicated with furloughed employees about benefit continuation. • Layoff = Termination of employment.
Legal Considerations for Return-to-Work Decisions • Are you returning employees to the workplace in phases? • If so, how will you determine who to bring back and when? • Avoid discrimination/retaliation claims: • Ensure that you can articulate non-discriminatory reasons for decisions: e.g., job function and business need, specific employee skill sets, etc. • Not assumptions about employee’s vulnerabilities, age, ability to telework. • Not previous or presumed future use of FFCRA.
Requiring Return to Work? Discipline/Discharge for Refusal? • Avoid blanket rule that everyone must return to work immediately. • Instead, ask: Why is employee refusing? • Due to mental/physical disability? – may have to accommodate with temporary leave/telework if possible and reasonable. • Distinguish between legal accommodations required and discretionary ones. • Symptoms of COVID-19 or doctor directive? [FFCRA] • Need to care for family member? • FFCRA? (Care for family member with symptoms, care for child due to school/childcare unavailability) • “Regular” FMLA – no need to accommodate family member’s disability under ADA, but employee may be eligible for unpaid leave under FMLA.
Requiring Return to Work? Discipline/Discharge for Refusal? (cont.) • Is any county/municipal safer-at-home order in place? • Those often encourage telework where possible • If employee has no disability or suspected disability under ADA/WFEA, no entitlement to FFCRA or FMLA leave, and telework is not possible: • Why refusing? • Dialogue with employee—find out concerns and give assurances about PPE/other safety measures in writing • Document refusal and reasons • Carefully document discipline/discharge
Employee Testing/Screening • Taking temperatures: EEOC permitted • Can keep daily temperature logs. • Consider tasking one person or small group. Keep confidential! • Employee screening questionnaires: • May ask about symptoms of COVID-19, • Do not ask existence of other health conditions/disabilities. GINA/ADA issues. • Rather, invite employees who have concerns about vulnerabilities they would like to discuss to come to you privately. • Be careful of incentivizing dishonest answers (attendance bonuses) • Can require employees to “log in, log out” of building/facility. • Accommodations during reopening? • E.g., non-latex gloves, modified face masks, etc. • Interactive process remains key.
Employee Acknowledgments--Not Waivers/Releases • Waivers and Releases in employment context generally not enforceable • Create issues under OSHA and Work Comp • Rather, get Employee Acknowledgements: • PPE provided • Flexible work schedule • Opportunity to telework • Regular sanitizing/cleaning • Workspace alterations to assure social distancing
Non-Compliance or Complaints from Co-Workers: What to Do? • Co-worker complaints: Document! • Differentiate between conduct in and out of workplace • Employers can insist upon compliance: Employers can require masks or other PPE • Understand NLRB and OSHA evolving protections for employees • “Public policy”/whistleblower complaints
Return to Work Preparedness/Best Practices • Have a clear RTW plan! No ad hoc response • Keep on top of ever-changing guidance from agencies (next slide) • Review your employee handbook/policies • Wage and Hour/Telework policies! (Esp. for non-exempt) • FFCRA policy • Leave request documentation (required for tax credit eligibility) • Avoid discrimination/retaliation claims (rehiring/recall from furlough)
Federal and State Guidance for Return to Work • CDC: https://www.cdc.gov/coronavirus/2019- ncov/community/organizations/businesses-employers.html • DHS: https://www.dhs.Wisconsin.gov/covid-19/employers.htm • DCF: http://dcf.Wisconsin.gov/files/childcare/covid/pdf/dcf- order-19-covid-19.pdf • DWD: https://dwd.wisconsin.gov/ • SPS: https://dsps.wi.gov/pages/Home.aspx • WEDC: https://wedc.org/reopen-guidelines/
Gary Glader, CSP Horton Safety Consultants
COVID-19 Impact on Workplaces
Employers Returning to the Traditional Workplace • As infections decline, other employers will transition back to the workplace • These employers concerned about the issues involved in return to the workplace • Lessons learned by essential employers will help these employers avoid mistakes
Experience of Essential Employers • Experiencing spread of the virus at work • High absenteeism • Employees frightened at work • OSHA complaints at record level • PPE is still difficult to source • Employers simply don’t know what to do
COVID-19 Workplace Safety Exposure Control Plan (Coronavirus) COVID-19
COVID-19 Workplace Safety • Foundation of a virus safety program: – Thorough assessment of the workplace – Development of an exposure control plan
Practical Approach to COVID in the Workplace • Most COVID-19 precautions are advisory in nature • Objective should be to manage the risks associated with COVID-19 • Plans should adapt to changing circumstances • Practical approaches consider the circumstances
Exposure Control Plan - Elements • Infection prevention • Identification/isolation of infected persons • Engineering, administrative controls, PPE • Cleaning and disinfection • Communication and training • Periodic audits
Infection Prevention
Infection Prevention • Questionnaires • Temperature monitoring • Testing • Work at home policies • Visitors & deliveries • Travel policies
Testing
Viral Testing • COVID-19 testing capability is expanding • Testing for the virus only identifies persons who have the virus at time of test • Additional and faster virus testing will help prevent the spread
Antibody Testing • Antibody testing, conditionally approved, will help employers repopulate workplaces & provide comfort to those with immunity • Preliminary antibody testing indicates actual exposures may be 50 to 80 times greater than what current testing shows
Antibody Testing • It is not yet known if exposure to COVID-19 results in immunity • Exposure to other coronaviruses (SARS and MERS) did result in extended immunity
Engineering & Administrative Controls
Engineering & Administrative Controls • Social distancing • Density reduction • Adding shifts • Physical barriers • Dedicated tools, forklifts, etc. • Suspend job rotation
Personal Protective Equipment (PPE)
Masks • Masks only protect those near the wearer • Little protection for wearer of the mask • Masks reduce the droplets in air
Respiratory Protection • N95 protects the user • Voluntary use reduce OSHA compliance obligations
Cleaning & Disinfecting
Cleaning & Disinfecting • Routine cleaning & disinfecting according to CDC guidelines to prevent spread • Disinfecting may also be needed when a positive work- related case is suspected
Communication & Training
Communication & Training • Transparency and frequent communication help calm employee concerns and fear • Employees, supervision, and management must be trained in program elements
Periodic Audits
Periodic Audits • Identify gaps in application of the plan • Audits help establish good faith required for OSHA compliance
OSHA Compliance
OSHA Compliance • COVID-19 cases NOT recordable unless employee is in healthcare, first responder, or corrections or case is work related • Agency inspecting workplaces and issuing general duty violations for non-compliance • Good faith efforts recognized, but must be documented
OSHA Compliance • Memo issued on May 19 announced the creation of an updated interim enforcement response plan • OSHA will be carefully evaluating recording of COVID cases and investigations
Summary
Summary • Thorough assessment and development of an exposure control plan is key to prevent spread in essential workplaces, and for those planning to return to traditional workplaces soon
Verna M. Shavlik, ASID, WRID Creative Business Interiors
Social Distancing Reintroduce Team Members in Phases From home… to the office.
Home Office Setup
Office Traffic Floor Placement Decals
Panels Reception
Sanitation Stations and Signage
Sanitation Mobile Sinks
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