Last week, President Trump unveiled his Guidelines for Opening Up America Again. The Guidelines present a three-phase, criteria-based, framework to allow individuals and employers to return to normal activities. The return-to-work envisioned by the White House calls for the easing of current restrictions, not the wholesale abandonment of those restrictions. The guidelines are not statutes nor regulations, but are guidelines. Ultimately, state and local governments may establish specific requirements for meeting the White House’s guidelines, and those requirements will likely vary. For example, in advance of Texas’ move to re-open, Harris County, Texas Judge Lina Hidalgo issued an order mandating that everyone in Harris County over the age of 10 wear a face covering when outside their home. Judge Hidalgo’s order is effective April 27, 2020 through May 26, 2020. Although many state and local governments have not issued specific return-to-work requirements, there is much to be gleaned from the White House’s guidelines.
At each of the White House’s phases, there are certain expectations for both individuals and employers. Although employers do not yet know what the specific return rules may be in their state, parish, county, or municipality, employers should begin to consider what they will need to do to meet the White House guidelines and any forthcoming state or local rules. During all phases, the White House encouraged employers to develop and implement appropriate policies for social distancing and protective equipment, temperature checks, sanitation, use and disinfection of common and high-traffic areas, and policies related to travel (including adhering to CDC guidelines regarding isolation following travel).
Recognizing vulnerable workers, in phases 1 and 2, employers are encouraged to strongly consider “special accommodations” for personnel who are members of a vulnerable population. Consistent with this guideline, vulnerable individuals are likewise encouraged to continue to shelter in place.
In phases 1 and 2, employers are encouraged to continue to allow teleworking. For those who return to work, social distancing (strict social distancing in phase 1 and moderate social distancing in phase 2 ) will be the new normal (both at work and in public settings), and physical touching (e.g., handshaking) is a thing of the past. Everyone (both in the workplace and in public) should be given a 6-foot personal area. To assist with social distancing, the White House guidelines call for the closing of common areas in employment settings (during Phases 1 and 2), and employees should not use other employees’ telephones, desks, spaces, tools, or equipment. The idea is to decrease the opportunities for contact and cross-contamination. This includes areas of potential cross-contamination such as printers, copy machines, and even the ubiquitous (but high touch) coffee machine, and employers should consider how to minimize those contact points.
To minimize waits for elevators and to avoid rushes of employees at one time, flexible and staggered work schedules should be considered. To the extent necessary, workspaces may need to be modified to increase distances between employees and possibly add physical barriers between employees (e.g., “sneeze guards”). For some employers, it may make sense to also establish flow patterns and make certain hallways and stairwells one-way, to keep employees from running into one another. Employees may still need to interact with one another, so remote and virtual interactions should be the rule – even within the same workplace. Employers will also need to serve as gatekeepers for their visitors, and visitors to the workplace should be kept to an absolute minimum.
Once employees return to work, employers will need to pay special attention to cleaning practices and ensuring a safe work space in compliance with CDC, OSHA, state, and local guidelines. Employers should be prepared to continue to educate employees on proper hygiene, including hand washing, no touching of the face, and covering one’s mouth and nose when coughing or sneezing. Employers will need to make sure to have sufficient hand washing stations and supplies, paper towels, hand sanitizer, disinfectant wipes, and tissues. Depending on the employment setting, employers may have to provide PPE or may be ordered to provide cloth face masks. To maintain a healthy work environment, employers should be prepared for routine professional cleanings and disinfecting, consistent with CDC guidelines, as well as regular and recurring cleaning of high touch areas throughout the day of things such as doorknobs and handles, elevator buttons, and drawer pulls. Employers may also want to consider removing supplies and common-use items from printer and copy areas.
The guidelines also call for employers to monitor their workforces for symptoms of COVID-19 and not to allow anyone who is symptomatic to physically return to work until cleared for return. Importantly, the guidelines also call for employers to develop and implement policies and procedures for workforce contact tracing following an employee’s positive COVID-19 test. Limiting employee interactions should greatly simplify contact tracing.
The first 2 phases of the White House guidelines address the path back to “normal.” Phase 3 is a return to some semblance of normalcy, or at least a new normal. A return to normal as we knew it may not occur until a vaccine or some other mitigating anti-viral medicine is found.