Webinar Title Our Moderator Dan Meyer Publisher/Owner Our - - PowerPoint PPT Presentation

Webinar Title

Dan Meyer

Publisher/Owner

Our Moderator

Our Presenters

Laurie E. Meyer Employment and Litigation Attorney Davis|Kuelthau, s.c. Gary Glader President Horton Safety Consultants Verna M. Shavlik, ASID, WRID Director of Interior Design Services Creative Business Interiors

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
• nes.
• 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-
• rder-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 only protect those

near the wearer

• Little protection for wearer of

the mask

• Masks reduce the droplets in

air

Masks

• N95 protects the user
• Voluntary use reduce OSHA

compliance obligations

Respiratory Protection

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

Floor Plan:

Boardroom

Floor Plan:

Break Room

Adjust placement of team members to support social distancing.

• Remote work options
• Alternate shifts or A/B team schedules
• Phase employees’ return to work in stages

Social Distancing

Review Open Office Furniture and Adjust Placement

Social Distancing

Review Open Office Furniture and Adjust Placement

Panels

Knoll Workstation Modesty Screens

Panels

Knoll Panel Add-Ons

Panels

Freestanding Floor Screens

Indoor Environment

Increase air circulation and/or change air handling systems. Add interior plants.

Modular Construction

Modular construction for quickly creating flexible spaces.

Modular Construction

Modular Construction

Falkbuilt

Hands Free Sensors

Hands free adjustable features added throughout.

(door sensors, faucets, soap, trash etc.)

• Simplify transition spaces, less furniture

less tactile materials

• Bleach cleanable fabrics and increase

utilization of anti-bacterial technology fabrics

• Technology upgrades to continue

remote availability

• Increase enclosed meeting spaces

and private offices

Long-Term Changes for Consideration

Change Management

Survey Your Company

Q&A

Laurie E. Meyer Employment and Litigation Attorney Davis|Kuelthau, s.c. LMeyer@dkattorneys.com Gary Glader President Horton Safety Consultants gary.glader@thehortongroup.com Verna M. Shavlik, ASID, WRID Director of Interior Design Services Creative Business Interiors verna.shavlik@creativebusinessinteriors.com

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