As the COVID-19 vaccine becomes available across the country, companies are facing critical decisions as they create policies and/or plan for the transition back to work. Below is a list of questions and best practices Frantz Ward attorneys frequently discuss with clients related to key issues facing returning to the office.
Back to the Retail Health Check
- Q: Do I legally have a right to ask my employees to take their temperature and screen themselves for COVID symptoms daily?
- A: Yes, an employer or retailer should ask its employees to take their temperature and screen themselves for symptoms prior to coming to work or entering the workplace. This is especially important in retail so that customers do not get sick
- Q: Do I have the right to ask them whether they have been exposed to anyone who has had the coronavirus?
- A: Yes. However, the Genetic Information Nondiscrimination Act (GINA) prohibits employers or retailers from asking employees medical questions, specifically, about their family members. So, you can ask them if they have been exposed to anyone who has had the coronavirus, but you cannot ask them if their family members have, or had, the coronavirus
- Q: If I found out they have been exposed, do I have the right to require employees to self-quarantine at home?
- A: You should prohibit them from entering the workplace while they wait for the isolation period to expire. An employee can telework whilst self-isolating or, if telework is not possible, may take paid or unpaid leave depending on the employer’s policy
- Q: Can I require that employees get the vaccine?
- A: Yes. Employees may, however, have a disability or sincerely held religious belief that prevents them from receiving the COVID vaccine. In that case, the employer should engage in the interactive process to see if a reasonable accommodation is possible. Click here to listen to our podcast with more information on this topic
- Q: Do employees have to tell us if they have the virus?
- A: Employers should require employees to tell them that they have the virus. And, employers have the right to ask if employees are experiencing symptoms, as well as the right to send employees home if they are displaying symptoms
- Q: What if they start to exhibit symptoms, can I ask them to go home?
- A: As mentioned above, yes. The CDC states that employees who become ill with symptoms of COVID should leave the workplace immediately
- Q: Can I require that visitors wear masks?
- A: Yes, a retailer should require visitors to wear masks and observe infection control practices. In most situations, where a customer refuses to wear a mask, you can deny them entry into your store – this remains true even if they have gotten the vaccine or claim to have gotten the vaccine
- However, where a visitor with a disability truly needs a related reasonable accommodation under the ADA or a religious accommodation under Title VII, the employer should discuss the request and provide the modification or an alternative if feasible and not an undue hardship on the operation of the employer's business under the ADA or Title VII
- In most situations, this will be obvious. So, for example, an older person who is using an oxygen tank to breathe may be unable to wear a mask as it restricts airflow
- Further, retailers should post a list of COVID-19 symptoms in a conspicuous place, ask customers and guests not to enter if symptomatic, and provide access to hand washing while in the establishment
Leave of Absence
- Q: Do I have the right to require employees wear a mask while they are not at their desk
- A: Yes, just as with visitors, an employer may require employees to wear masks and observe infection control practices subject to the ADA and Title VII
- Q: I see some employees are not wearing their masks over their nose and mouth, can I require them do it that way?
- A: Yes, subject to the ADA and Title VII
- Q: Should I provide PPE and sanitizer at the workplace at no cost?
- A: At a minimum, you should provide hand sanitizer in your store free of charge. We would also encourage that you have masks available for customers if their mask breaks, or if they happen to forget a mask. If, for whatever reason, hand sanitizer or masks are being stolen, misused, or wasted – you may consider restricting access to them
- Also, as described above, post a list of COVID-19 symptoms in a conspicuous place, ask customers and guests not to enter if symptomatic, and provide access to hand washing
- Q: How do I ensure we’re complying with Families First Coronavirus Response Act?
- A: The Families First Coronavirus Response Act is no longer in effect. However, we expect President Biden to attempt to implement similar leave
- Q: Do we need to tell the rest of the staff if one of our employees has COVID?
- A: You should notify those who may have come into close contact with the employee, without revealing the sick employee’s identity. For example, using a generic descriptor, such as telling employees that “someone at this location” or “someone on the fourth floor” has COVID-19, provides notice, and does not violate the ADA’s prohibition of disclosure of confidential medical information
- Q: Is this a violation of privacy laws?
- A: No. However, it would violate the ADA to identify the employee by name as the ADA requires that an employer keep all medical information about employees confidential
Cleaning and Disinfecting
- Q: Can I require that employees work remotely?
Break Rooms, Cafeteria, and Workplace Organization
- Q: What are the requirements for cleaning and disinfecting employee work areas?
- A: Retailers should clean the entire establishment daily. Retailers should clean all high touch areas every couple of hours, and more frequently touched areas as needed (e.g. door handles; light switches; shopping carts)
- Retailers should also provide approved hand sanitizer and consider offering hand sanitizing wipes. Cleaning and disinfecting specifics may vary by city or state
- Q: What steps need to be taken before employees are back to work?
- A: All employers should develop a policy outlining what steps it will take to ensure social distancing, clean workspaces, and that ensures that it isolates confirmed COVID cases. Any policy should, generally:
- Require employees maintain a minimum of six feet distance from each other
- Require facial coverings in the workplace unless otherwise unsafe or prohibited by law
- Require that employees perform daily symptom assessment
- Require that employees stay home if symptomatic
- Require regular handwashing by employees
- Q: Can I limit the number of people that go into the cafeteria or break rooms to promote social distancing?
- A: Yes. We would recommend limiting such gatherings to 10 people or fewer – or, following more stringent state guidance. An employer can limit those in the cafeteria by, for example, staggering lunch times
- Q: What am I required to do legally to organize cashiers or other retail spaces to minimize the spread?
- A: Legal requirements may vary from state to state. However, an employer generally must ensure a minimum of six feet distance between people, and, if this is not possible, should reorganize the workplace or install barriers
- For example, marking six feet distances on the floor so that customers can maintain a proper social distance