As many states are opening for business during the COVID-19 pandemic, it is imperative that professional service employers follow federal and state guidance regarding employees returning to the office. The following is a high-level overview of federal and New York, Connecticut and New Jersey protocols and requirements.
Equal Employment Opportunity Commission (EEOC)
EEOC guidance1 summarizes the types of inquiries employers may make of employees about COVID-19. Permissible inquiries include asking employees about any COVID-19 symptoms, COVID-19 diagnoses/test results and their exposure to individuals who have been diagnosed with COVID-19. It also outlines different preventative measures employers may take to reduce the risk of transmission of COVID-19, which include asking employees to certify they do not have COVID-19 symptoms before reporting to work, temperature checks, administering COVID-19 tests (provided they are accurate) and return-to-work medical certifications. Any information collected from employees through such inquiries or preventative measures, including the identity of employees with the virus, must be kept confidential and stored separately from an employee’s personnel file. The guidance also permits employers to ask all employees if they will need a reasonable accommodation due to a disability as part of its plan to reopen and to assess whether any requested accommodation is feasible in accordance with applicable law. It also specifies the types of inquiries employers may make of new hires during the pandemic and the circumstances when employers may delay a new hire’s start date or withdraw an offer of employment.
Centers for Disease Control and Prevention (CDC)
The CDC has issued detailed guidelines2 that employers must follow to safely reopen their offices and limit liability, which includes recommendations regarding (1) office cleaning, (2) social distancing, (3) ventilation and water system modifications, (4) handling sick employees, (5) personal protective equipment (PPE), and (6) limiting non-essential travel. The CDC has also provided a series of checklists in its Resuming Business Toolkit3 that employers should consult to ensure compliance.
Occupational Safety and Health Administration (OSHA)
OSHA’s reopening guidance4 encourages employers to develop an infectious disease preparedness and response plan and to implement infection prevention measures to prevent the spread of COVID-19 in the workplace such as routine cleaning and training employees on COVID-19 risk factors, protective behaviors and related policies. The guidance also requires employers to provide employees with appropriate PPE and to report COVID-19 work-related incidents to OSHA (with some exceptions).
New York State
With Phase I of New York City’s reopening for manufacturing and construction beginning on June 8, 2020, employers must prepare for Phase II for office workers. It is expected that Governor Cuomo will announce the commencement of Phase II shortly.
New York State has issued specific requirements and guidance for reopening most office-based businesses (including professional services, nonprofit, technology, administrative support and higher education administration) and businesses in other industries in Phase II.5
On May 28, 2020, New York State published “Reopening New York: Office-Based Work Guidelines for Employees and Employees.”6 The guidelines include mandatory actions both essential and non-essential employers must take to ensure (1) physical distancing; (2) PPE is available to employees; (3) hygiene and cleaning; (4) communication plans with employees regarding COVID-19; and (5) screening along with recommended best practices for all of the foregoing.
In connection with the above guidance, New York issued a more-detailed document containing the minimum “Interim Guidance for Office-Based Work During the COVID-19 Public Health Emergency,”7 which states that “no office-based work activities can operate without meeting the minimum State standards, as well as applicable federal requirements . . . .” set forth therein. This detailed guidance breaks down reopening requirements for Phase II businesses based on “People, Places and Processes.” Employers must familiarize themselves with these mandates and then affirm that they have read the guidance and will comply with its mandates prior to reopening.
In addition, the New York State Department of Health has issued a “NY Forward Safety Plan Template”8 that employers must complete, follow and conspicuously post in the workplace, which summarizes the steps employers are taking to prevent the spread of COVID-19. The template is not mandatory if an employer develops its own safety plan that satisfies all of the State’s requirements. The template contemplates (1) physical distancing requirements; (2) PPE to be available to employees; (3) diligent hygiene and cleaning; (4) communication plans with employees regarding COVID-19; (5) screening and contract tracing; and (6) disinfection.
In Connecticut, office-based employers were allowed to open their businesses effective May 20, 2020 provided they implemented and comply with the detailed office reopening guidelines.9 The guidance makes clear that employees in office settings “are encouraged to continue to work from home where possible.” It also states that “[b]usinesses should take these rules as the minimum baseline of precautions needed to protect public health in Connecticut.”
At a high-level the guidance requires office-based employers to: (1) circulate the guidance to employees; (2) encourage employees to work from home; (3) appoint a program administrator who is accountable for implementing the guidance; (4) stagger shifts, start and stop times and break times; (5) maintain a log of employees on premise to support contact tracing; (6) limit visitors and service providers on-site; (7) train employees on the guidance and safe reopening plans before employees return to the office; (8) procure and distribute PPE; (9) develop a cleaning plan/checklists; (10) complete a thorough cleaning before reopening; (10) complete the self-certification on the Department of Economic and Community Development (DECD) website to receive a “Reopen Connecticut” badge; (11) post clear signage about office policies during the pandemic; (12) increase ventilation; (13) rearrange office space for social distancing and install partitions as necessary; (14) install social distance markers; (15) close non-essential amenities; (16) develop a plan for elevator use; (17) install touchless appliances; (18) post clear signage about how to report violations of the guidance that includes the state hotline; and (19) conduct daily health checks.
In New Jersey, it is currently projected that office-based employers may reopen during Stage 2 on June 15, 2020 provided they allow workers that can work from home to continue to do so. It is unclear when employers may bring all teleworking employees back to the office based on the current guidance.10 Note that in Stage 3, “[m]ore work activities, including in-person meetings, are allowed at physical locations only if they can adhere to safeguarding guidelines and modifications.” The guidance notes that “[p]recautions that apply across all stages include: (1) work that can be done from home should continue to be done from home; (2) clinically high-risk individuals who can stay at home should continue to do so and (3) all residents and businesses should follow state and federal safeguarding guidelines: wash hands; wear masks in public; respect social distancing; minimize gatherings; disinfect workplace and businesses; and no mass gathering.”
The Governor’s office has also issued his “Reopening Plan – Road Back: Restoring Economic Health through Public Health: Which businesses may reopen and which businesses must be closed?”11 However, under New Jersey guidance, it is clear that “[i]f your business is not a retail business, you may continue to operate, but you must let your workers work from home whenever possible. For example, professional services firms—such as law firms, accounting firms, etc.—may continue to operate, but must let employees work from home . . . If you have employees that need to be on site, you must keep them to the minimum number needed for critical operations; examples of these include . . . custodial staff and certain administrative staff.”12
Employers may ask “how do I reopen my business and what safety rules must be followed?” This is addressed in a helpful Frequently Asked Questions resource.13
If you have any questions regarding reopening under federal reopening guidance or in the tri-state area, please contact Anne C. Patin at (212) 574-1516, Julia C. Spivack at (212) 574-1373 or your relationship partner at the Firm.
Seward & Kissel has established a COVID-19 Resource Center on our web site to access all relevant alerts that we distribute.