Employers are faced with the difficult task of preparing their businesses to reopen and as they do so are presented with many questions.

Back to Work Covid 19 The most important of which is how to ensure the safety of their employees and visitors to their offices. Next on the list is what liability could they be faced with if someone should become ill after working at or visiting their business.

Sadly, there is no single guidance for an employer to follow. As of late the CDC has issued a guidance, as did the Whitehouse, OSHA has their guidance and then there are the those coming out of individual state houses and municipal governments. Not to mention the ongoing changes being made to the guidelines. All of which, makes it difficult for an individual business to know, all of what they are expected to do.

Essential businesses had to put new processes and procedures in place, which are now becoming part of the “new normal”. Some of what they had to accomplish, does take time, like sanitizing workspaces and common area touch points, retrofitting space for proper distancing and ordering new supplies. Be sure to keep this in mind when it comes the time for your business to open.

In general employers will need to address social distancing, personal protective equipment (PPE) use and handling, disinfection and daily cleaning procedures, how to screen for illness as well as policies for what to do when someone tests positive for COVID-19.

Keeping Separated

Since the virus is believed to spread mainly from person-to-person, current social distancing guidelines recommend people stay at least 6 feet from one and other. Translating this guideline to the workplace may require a reconfiguration of office space, especially in open office environments. When this is not possible, due to the practicality of work being done, PPE will be required in order to help reduce the risk of spread. It will also be important to minimize employee gatherings. Employers may have to consider working in smaller breakout groups if conference rooms cannot accommodate the 6-foot physical distance recommendation.

Employees will also need to be reminded that they should not share their workspace, tools or supplies with their co-workers to further reduce the risk of spread. Closing off or limiting access to common areas where employees are likely to congregate and interact may also be necessary. The adjusting of business practices to reduce close contact with customers is also an important consideration, particularly for those in a retail environment. As you may have noticed in your local grocery store or restaurant, barriers are being created to maintain distances and keep everyone safe.

Personal Protection, Cleaning and Disinfection

Every business needs to consider what PPE will be necessary to keep their employees safe. If masks or gloves are required, the employer will need to provide them. And if PPE is required then appropriate disposal bins will need to be placed throughout the workplace. Employers should also consider providing hand sanitizer in common area for employee use. It may even be prudent to stock the office coffee station with disposable cups and utensils instead of having employees use their own coffee mugs and kitchen utensils.

Cleaning and disinfection protocols will need to be reviewed and determinations made for how to ensure that high-touch surfaces will be disinfected regularly. It may also be prudent to have disposable disinfecting wipes available in common areas and encourage the cleaning of hard surfaces like conference or worktables and commonly used surfaces like doorknobs, remote controls and other potentially shared equipment. Businesses may need to consider having their office/building cleaners come in more often or provide cleaning supplies so individual employees can thoroughly clean their workstations as part of their “end of day” routine.

Consider Daily In-person or Remote Health Checks

Conducting health checks of employees, i.e. symptom and or temperature screening of employees, prior to their entering your facility might be an important consideration for your business. If this is a necessary step to keep employees stay, these health checks will need to be done in accordance with state and local health authorities. Daily questionnaires can be conducted via computer or on paper, but either way they are done, they are considered medical records and must be handled confidentially. In this case it will be necessary to follow the guidance from the Equal Employment Opportunity Commission regarding confidentiality of medical records from health checks. It will also be critical for someone to be monitoring the information and be prepared to act on the answers received.

If implementing in-person health checks, conduct them safely and respectfully, employers may use social distancing barriers, partitions or PPE to protect the screener. However, relying on PPE alone is a less effective control. In order to prevent stigma and discrimination make the employee health screening as private as possible. Ensuring the confidentiality of each individual’s medical status and history.

The CDC does allow for employers to test for COVID-19, though this could be problematic due to the availability and reliability of tests as they only certify someone as negative at that moment. Another option is daily temperature checks, but this too has problems, since not everyone with COVID-19 has a fever, which could lead to a false sense of security or even a false positive. If a fever is detected ten

Utilizing computer or handwritten questionnaires have their issues as well, especially if the person is answering the questionnaire while in the facility. This provides the possibility of the person entering the workplace with the illness and spreading the virus.

The goal of any such screenings, other than to protect the employees and provide a safe work environment, is to create a new culture of individual awareness and responsibility. The employee who gets up in the morning and does not feel well will think a bit more about whether or not they are symptomatic and whether or not they should go to work.

What to If an Employee Tests Positive

Employers will need to take immediate action if an employee or visitor is suspected or confirmed to have COVID-19. Both the CDC and OSHA have guidelines for handling situations where someone who was in the workplace, employee or visitor, is found to be positive for the illness. The CDC guidelines are general whereas OSHA guidelines are by industry. In general, the workplace will have to be disinfected and employees will have to be informed. It will be important to provide employees with as much information as possible with revealing the person’s identity, i.e. places in the building where the infected individual has been.

Being Afraid to Go to Work

When doors are reopened employers just might find that some of their employees are afraid to come back to work. This may especially be true for individuals with pre-existing health conditions that make them more vulnerable.

Speaking in generalities, there are no requirements to provide leave to people who are afraid. However the Families First Coronavirus Response Actrequires certain employers to provide employees with paid sick leave or expanded family and medical leave for specific reasons related to COVID-19. This act applies to certain public and private employers with fewer than 500 employers. In most cases the Act provides that employees of covered employers are eligible for two weeks or 80 hours of paid leave at their regular rate of pay and in some cases and up to 10 weeks of paid expanded family and medical leave at two-thirds their regular rate of pay.

Employer Liability

Many business owners are concerned about liability should an employee contract the virus. One of the first lawsuits related to COVID-19 was filed in April against a Walmart Superstore in Illinois. It was filed as a wrongful death suit and most legal experts believe more will follow. Such workplace exposure cases contain a myriad of issues for the courts to wrestle with, such as defining an employer’s duty and how to determine if an employer has violated said duty. Additionally, determining how an employee proves they contracted the illness from the workplace will be another area of contention.

In general, if an employee contracts an illness at work, they are covered under worker’s compensation. If employers act in good faith, taking reasonable steps to reduce the risk of COVID-19,based on known facts and government guidelines, they should not have additional liability. Businesses defending future exposure lawsuits will be called upon to show that they took the threat seriously and implemented reasonable measures to protect their employees and their customers.


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