As business sites slowly transition from being figurative ghost towns to welcoming back employees, some significant questions about how to properly, legally – and safely – get back to work remain.
While the Lamont administration has provided detailed guidelines for businesses allowed to reopen on May 20 – and will add more as the state approaches Phase 2 of resumption on June 20 – there are still enough gray areas to befuddle some employers.
Part of the uncertainty is in regards to which employees – if any – should be allowed back into the workplace. The governor has underscored that if an employee has been fulfilling his duties by working from home during the pandemic, he should continue to do so. Either way, state regulations call for a capacity limit of 50% for businesses opening during Phase 1.
But that is easier said than done for some companies, according to Jonathan Orleans, chair of the Labor and Employment Section at Bridgeport law firm Pullman & Comley.
“It’s really difficult to gauge” how many businesses are going full-steam ahead, Orleans said. “We have a number of clients who have been planning for some time to begin bringing back their employees, and there are some who are waiting to see how things develop.”
“The fundamental advice is to do whatever you can, and whatever the government advises, to protect the health of your employees and customers,” he said. “But there is an enormous amount of information out there. You have the state of Connecticut guidance, CDC guidance on what to do if someone is showing symptoms or tests positive, and OSHA guidance.
“Frankly it can all be fairly burdensome for employers to sift through,” Orleans continued. “It’s not that the specific measures are terribly complicated or hard to understand — it’s more the volume of material you have to plow through to make sure you’re not missing anything.”
One aspect of the so-called “new normal” is that employers can require their staff to provide information about out-of-state travel, whether for business or personal reasons.
“During an emergency, the expectation is that employers may be somewhat more intrusive in gathering that kind of information from employees than they would otherwise,” Orleans said. “Going out of state, you’re more likely to take public transport, where the risk of exposure is greater.”
In addition, he noted, different states have different policies. As a result, employers with multistate operations will have to be careful to make sure they’re in full compliance in each location.
Employers may also request information from employees who have been sick or may have been exposed to the virus — but confidentiality must be maintained. Equal Employment Opportunity Commission (EEOC) guidance originally issued during the H1N1 outbreak of 2009, and recently updated, allows employers to seek information from employees about potential exposure, and even to temperature-test employees, but affirms that information about an employee’s symptoms or diagnosis remains confidential.
Orleans acknowledged that keeping the infected or positive-testing employee completely anonymous to coworkers may be difficult in some situations, such as working at a particular station with only a couple of coworkers. Nonetheless, the employer cannot directly identify who the affected employee is should the coworkers ask.
Orleans noted that even as Connecticut reopens, Lamont’s executive orders stress that employees who can work from home should continue to do so, which means that employers should continue to allow it.
But if an employee cannot work from home, and their employer requires them to come back to the workplace, that employee can refuse to do so only if they have a valid reason under the Family and Medical Leave Act (FMLA), the Families First Coronavirus Response Act (FFCRA), or some other legitimate basis under a statute or under the employer’s policies.
“The question we get the most often from our employer clients is, ‘What do we do with an employee who refuses to return to work now because they’re just anxious’”? Orleans said.
If they’re not suffering from debilitating depression or anxiety, as diagnosed by a psychologist or psychiatrist — which could entitle them to leave under the FMLA or an accommodation under the Americans with Disabilities Act — the employee may be viewed as someone turning down suitable work. As a result, they could face termination and loss of unemployment benefits. The Connecticut Department of Labor has announced that it will review such instances on a case-by-case basis.
Even where the employee does not appear to have a valid reason, Orleans said, “We are not recommending to our clients that they summarily terminate people. You should explain to the employee the reasons you need them back, list all of the protective measures and equipment you have in place, and remind them of the 50% capacity rule.
“Give them time to think about it,” he said, “before saying you will treat them as having voluntarily quit.”
Issues about a business owner’s liability if an employee becomes infected are a little thorny, the attorney said. “It is very, very hard scientifically to determine exactly where someone picks up this virus. Any employee or customer who wants to contend, ‘I was infected at this particular location’ is going to have a problem proving that.”
The employee’s claim will likely be handled through the workers’ compensation system, Orleans said. “The employee doesn’t have to prove negligence by the employer, so those benefits are easier to receive than winning a lawsuit.”