As employers are reopening or planning to reopen their offices, federal and state agencies continue to issue and update reopening guidance. Last week, Seward & Kissel summarized the Office Reopening Guidelines for the Tri-State Region During the COVID-19 Pandemic. Below is a summary of updated and new guidance from federal agencies that employers should also consult to ensure compliance.

Equal Employment Opportunity Commission (EEOC)

The EEOC issued updated COVID-19 workplace guidance on June 11 and 17, 2020. The updated reopening guidance addresses a few new topics and sets forth some best practices regarding bringing employees back to work, including:

• Employers cannot require employees to get antibody tests before allowing them to return to the workplace.
• Employers are not required to provide accommodations to an employee without a disability based on the disability-related needs of the employee’s family-member or other person with whom the employee is associated.
• Employers are encouraged to monitor their workforce to ensure there is no discrimination against employees who are or are perceived to be Asian. Employers should also remind managers of their obligations to manage inappropriate employee behavior before it rises to the level of unlawful discrimination and report any incidents of discrimination in the workplace whether in the office or while employees are working remotely or on leave.
• To determine whether employees will need accommodations, employers may advise all employees to contact a designated person if they wish to request an accommodation for a disability related to the office reopening even if no date has been announced for the reopening or for a particular employee’s return.
• If an employee requests an alternative health screening method due to a medical condition or for a religious reason, employers should handle such request in the same manner they would handle any request for an accommodation. Employers may bypass the interactive process and offer an alternative screening method if the requested change is easy and inexpensive.
• Employers should not exclude employees who are 65 or older or pregnant from the workplace due to concerns about such employees contracting COVID-19, even if such concerns are benevolent, given antidiscrimination laws based on age, sex and pregnancy.
• Notwithstanding employers’ obligations to provide childcare leave during the pandemic under the Families First Coronavirus Response Act, employers may provide additional flexibilities to employees that have lost their childcare due to school closures or for distance learning provided that all employees (of all genders) are provided the same flexibilities.

Occupational Safety and Health Administration (OSHA)

In a new Frequently Asked Questions (FAQ) page on OSHA’s website, OSHA outlines the differences between cloth face coverings, surgical masks and respirators. Notably, the FAQ states that cloth face coverings “[a]re not considered personal protective equipment (PPE)” and “[m]ay be used by almost any worker” but are “not appropriate substitutes for PPE such as respirators (e.g., N95 respirators) or medical face masks (e.g., surgical masks) in workplaces where respirators or face masks are recommended or required to protect the wearer.” OSHA recommends that employers encourage employees to wear cloth face coverings at work (where appropriate and if surgical masks or respirators are not required by working conditions), but notes that such face coverings are not a substitute for social distancing measures, which must still be observed. If cloth face coverings are worn in the workplace, OSHA notes that such coverings may be disposable after each use or reusable after proper washing according to CDC guidelines (summarized below). Regarding employees who become sick in the workplace, the FAQ recommends placing a surgical mask on sick workers “to prevent the transition of respiratory infections that spread by large droplets.”

On June 18, 2020, OSHA updated its returning to work guidance, supplementing its original guidance from March 2020, as follows:

• Suggesting, but not requiring, that employers reopen in three phases and develop business reopening plans that address such three-phased approach:
  • Phase 1: limited workforce returns to the office while other workers telework, strict social distance practices maintained, non-essential business travel is limited and accommodations are made for employees at higher risk of severe illness.
  • Phase 2: non-essential business travel resumes, more workers are allowed back into the office with the option of teleworking still available (where possible), moderate social distance practices maintained and vulnerable employees are accommodated.
  • Phase 3: business resumes unrestricted with all staff working at work sites.
• Business reopening plans should provide a point of contact for workers’ workplace safety concerns and also address:
  • Hazard assessment in accordance with OSHA’s PPE standard (29 CFR 1910.132) – to determine when, where, how and what sources of COVID-19 workers are likely to be exposed to while at work;
  • Hygiene and cleaning/disinfection practices;
  • Social distancing practices;
  • Identification and isolation of sick employees and self-monitoring or screening for COVID-19 symptoms;
  • Return to work after illness or exposure;
  • Controls – engineering (e.g., enhanced ventilation and physical barriers), administrative (e.g., staggering work shifts) and safety measure (e.g., PPE selected as a result of an employer’s hazard assessment);
  • Workplace flexibilities in respect of telework and sick leave;
  • Training regarding symptoms, potential exposure and prevention of COVID-19 (e.g., proper use of PPE or cloth face coverings); and
  • Anti-retaliation regarding reporting concerns with workplace safety or employee health.
• FAQ confirms that employers:
  • May conduct COVID-19 tests, work site temperature checks or virtual health checks on employees, provided such tests/checks are conducted on all employees and are not retaliatory, and notes that temperature screening is likely to be most beneficial when conducted at home by individual workers as opposed to by the employer at the work site.
  • May choose to create records of health screenings or temperature checks, but if such records are created, employers may need to comply with OSHA’s Access to Employee Exposure and Medical Records standard and record retention rules (29 CFR 1920.1020).
  • May choose to require that cloth face coverings be worn in the workplace where PPE is not required as an administrative control.

Centers for Disease Control and Prevention (CDC)

The CDC recently issued guidance regarding how to properly wash cloth face coverings, which the CDC advises should be washed after each use. Employers should consider circulating the guidance to employees who wear cloth face coverings in the workplace as part of its plan to train employees on the proper use of masks in the workplace.

If you have any questions regarding reopening under federal or state reopening guidance, 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.