Employers “Reopening” Businesses Must Update Employment Policies

By Todd Masuda

This afternoon Governor DeWine introduced guidelines for relaxing some of the business restrictions set forth in Ohio’s stay-at-home order. As employers determine how they move to reopen, it’s time to focus on workplace policies.

As we relax pandemic workplace protocols, it’s clear that employers will be obliged to take the lead as we feel out our tolerance for social and economic activity in relation to the pandemic threat. In the months to come, employers can expect to respond to shifting guidelines and best practices, shifts in public opinion and employee concerns, and shifts in legal and regulatory guidance.

As employers take the lead in conducting business, they and their employees will also take the lead in bearing the risk and consequences of increased exposure to infection. In light of those consequences, employers will be pressed to show they have conducted business appropriately, reasonably, and safely. It is crucial for employers to establish, document, and train managers on updated coronavirus policies.

Coronavirus policies will involve worker safety and leave rights. The guidelines the Governor released today include general safety guidelines, but safety guidance can be expected to adjust as doctors learn more about the illness. Leave rights will still have to work with the clumsy guidelines established by the FFCRA’s paid leave laws established in March.

The outline below is a checklist of policy issues. Each employer will have specific concerns to discuss with its attorneys as they develop the policies that are right for the company, its employees, and its customers.

Essential Policies

1. Protecting Workers
   1. Identify Vulnerable Employees
   2. Standard Distancing Policies and Protocols
      1. Enable Teleworkers
      2. Employee workplace distancing
      3. Protocol for working with customers and clients; establishing occupancy limits
      4. Protocol for working with vendors and contractors
   3. Standard Hygiene Policies and Protocols
      1. Communicating where and when to wash hands
      2. Sanitizing and deep cleaning work environments
      3. Mask requirements
      4. Temperature checks and individual health assessments
      5. Antibody or other testing checks (eventually)
   4. Policies for Handling Sick Workers
      1. Return to work
      2. Communicating with co-workers
      3. Notifying local Board of Health
2. Leave Policies
   1. FFCRA: Paid Sick Leave, Child Care Leave
      1. Notice
      2. Documentation/certification
      3. Classification of Leave (FFCRA Reasons #1-#6)
      4. Establishing rates of pay and paid leave schedules
      5. Tax credit application
      6. Exemption from Child Care Leave
   2. Regular FMLA, ADA, and ADEA
   3. Regular Company Policies
   4. Difficult Issues
      1. Employer discretion: what risk do employers take when they comply with the new guidelines, both in terms of spreading disease and incurring workplace liability?
      2. Leave policies. What does “up to date, flexible, nonpunitive” mean with regard to leave policies? What is the standard for employee discipline?
      3. Childcare Leave is probably the most convoluted FFCRA issue

**This information is offered for discussion, marketing and news purposes and is not intended to constitute legal advice.**