As most of Indiana continues in Stage 3 and approaches proposed Stage 4 of Governor Holcomb’s “Back on Track” plan, more employees are expected to return to work. While a vaccine for COVID-19 has yet to be produced, the key for employers is to take all possible precautions to keep your employees safe and to prevent and slow the spread of COVID-19 in the workplace. Employers should follow the actual orders and recommendations of the state and federal governments and avoid relying on projections before such orders and recommendations are issued. Employers also should be mindful that the pandemic conditions are fluid and vary community to community, and work restrictions may also vary depending on local conditions. Here are some guidelines that employers can implement:

Workplace Sanitation

Employers should (1) promote frequent and thorough hand washing and sanitizing by providing workers, customers, and worksite visitors with a place to wash their hands with soap, alcohol-based hand rubs containing at least 60% alcohol, tissues, no-touch trash cans, disinfectants, and disposable towels for workers to clean their work surfaces; (2) implement regular housekeeping practices utilizing EPA-approved disinfectants and frequently disinfect high contact surfaces in break rooms, restrooms, and other common areas (i.e. door handles, copiers, printers, lobbies, etc.); (3) consider improving building ventilation systems (e.g. installing high-efficiency air filters and increasing ventilation rates in the work environment); and (4) encourage respiratory etiquette, including sneezing or coughing into a tissue or the inside of the elbow.

Social Distancing

Employers should (1) encourage employees to maintain distancing of 6 feet (about 2 arms’ length) in the break rooms, kitchens, and other common areas; (2) encourage employees to use face coverings in public settings and while interacting with customers or other co-workers in person, especially when other social distancing measures are difficult to maintain; (3) discourage employees from using other people’s phones, desks, offices, or other work tools and equipment, whenever possible; (4) establish policies and practices, such as flexible worksites (e.g., telecommuting) and flexible work hours (e.g., staggered shifts), to increase the physical distance among employees and between employees and others; (5) consider replacing face-to-face meetings with virtual communications and implement telework if feasible; and (6) discontinue nonessential travel to locations with ongoing COVID-19 outbreaks. Employers can regularly check CDC travel warning levels at: https://www.cdc.gov/coronavirus/2019-ncov/travelers/.

Sick Employees, Health Screenings, and Employees’ Health Information

In compliance with Governor Holcomb’s Executive Order[1], all employers must implement screening procedures to ensure that employees are healthy upon entering the workplace. These health screening procedures should include requiring employees to provide a symptom verification and temperature check before entering the workplace.[2] Employees who have COVID-19 symptoms should notify their supervisor, stay home, and follow the CDC-recommended steps[3] to seek medical advice. Employees should not return to work until the criteria to discontinue home isolation are met, in consultation with healthcare providers. Employees who are symptom-free but who have a sick family member at home with COVID-19 should notify their supervisor and follow the CDC recommended precautions. Employers should also talk with companies that provide contract or temporary employees about the importance of sick employees staying home and encourage them to develop non-punitive leave policies.

All health information gathered through the above-mentioned screening procedures is considered a confidential medical record under the ADA, and therefore must be kept confidential and in a file separate from employees’ personnel files.

Leave of Absence and Pay Benefits

As employers begin to transition employees back to the physical workplace, it is important to keep in mind that that the two provisions under the Families First Act that provide leave and pay benefits to employees affected by Covid-19 – the Emergency Family and Medical Leave Expansion Act (“EFMLA”) and the Emergency Paid Sick Leave Act “EPSLA”) – continue through the end of 2020.

Employees who require time off from work because of school and childcare closures or if the employee is advised to quarantine or care for someone who is quarantined are still afforded the benefits under the EFMLA and EPSLA through December 31, 2020, provided the requirements are met. Our previous guidance on the EFMLA and EPSLA provisions can be found here: https://stuartlaw.com/wp-content/uploads/2020/04/COVID-19-Paid-Sick-Family-Leave-2.pdf.

For more information regarding workplace precautions, please see OSHA and CDC guidance, available at https://www.osha.gov/Publications/OSHA3990.pdf.

 

[1] Executive Order – Roadmap to Reopen Indiana.

[2] https://backontrack.in.gov/files/BackOnTrack-IN_WhatsOpen-Closed-stage3.pdf; https://backontrack.in.gov/files/BackOnTrack-IN_WhatsOpen-Closed-stage4.pdf.

 

COVID-19 Task Force

Please reach out to us for specific legal advice or with any decision-making questions you may have. We are here to help.

Barry L. Loftus
Sarah N. Dimmich
Miao Cheng
Shawna VanHook