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It's Never Too Early to Have a Plan - April 24, 2020

As Iowa contemplates the eventual reopening of businesses and employers start thinking about bringing back employees, it is critical for employers to have a plan in place before starting the process of returning employees to the workplace. Failure to have a plan could have a negative impact on employee health and potential claims from employees. The EEOC recently issued high-level guidance on return to work practices. There are several areas employers must consider:


Health of Workers

Employers should have a plan in place to protect their employees when they return to work. That plan must follow guidance from the Centers for Disease Control and Prevention (CDC) as well as the Occupational Safety and Health Administration (OSHA). State and local health department guidance may also be important for employers to consider.


Failure to follow the guidance to protect employees could result in employee claims of the employer's negligent failure to follow health guidance. Employers must be vigilant about understanding health requirements, establishing, and then enforcing them to avoid any potential of employee litigation.


Social Distancing

While some employers may be allowed to resume operations, state guidance may arise for social distancing for employees. Employers may need to consider their workplace arrangements and how the workspace allows for social distancing. This could include moving work areas, reducing contact of employees, and requiring the provision of PPE, wearing masks, and/or other similar steps.


How Soon is too Soon?

Some employers may consider bringing employees back on a voluntary basis. With schools closed and daycares providing limited service, some employees may need to remain at home for a period. In addition, some employees with health conditions may have a fear of contracting COVID-19 and wish to remain away from the workplace. Still, others may have concerns about spreading the virus to other more susceptible family members and may wish to remain at home. Employees may simply feel unsafe returning to work. Employers may wish to consider a voluntary return to work program if there will be a gradual return.


Avoid Discrimination

Be smart about how you bring back workers. As older individuals have been labeled more “at-risk” to COVID-19, some employers may be tempted to bring back younger workers first. This will put the employer at risk for a claim of age discrimination and should be avoided. Similarly, if employers delay the return of pregnant women to the workplace, they could face pregnancy discrimination claims. Consequently, employers should carefully consider any phased returns of workers to the workplace.


Health Screenings

The Equal Employment Opportunity Commission (EEOC) has recently approved employers taking temperatures of employees coming to work; however, health screenings beyond taking temperatures will be subject regulatory guidelines on other diagnostic testing. If you plan to test employees beyond taking temperatures, you must follow all guidance and regulations on that testing. Employers in healthcare or other sensitive industries have more stringent regulations to comply with. Employers also must continue to maintain the confidentiality of any health information, including employee temperatures, in order to prevent any potential disclosure of protected health information. Here is more guidance on health screenings.


Follow Policies and Union Contracts

Employers who have policies on layoffs and return to work must follow those policies. Failure to follow the policies could result in claims by employees of discrimination in the return to work program, as described above. Following your policies is critical, and any deviation must be supported by justification made prior to the decision to return employees to work.

Unionized employers will likely have layoff and recall procedures set forth in their contracts. Following those procedures is essential, and if there is to be any variation from that, it must be negotiated with the union.


The Big Picture: Plan Ahead and Follow the Plan

Having a plan in place before returning workers to the workplace is extremely important not only for the safety of employees and the efficiency of operations but also to avoid unnecessary complaints and potential litigation by employees.



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