Last week, we co-hosted a webinar on “COVID-19 Phase 2: Considerations for NY Office Based Employees”. We were joined by the incredible team at Proskauer who led us through a discussion of what businesses should plan for to re-open their doors to employees. This week’s newsletter summarizes key points and messages from this webinar relevant for NY and the rest of the nation.
Before re-opening, each office must implement a health and safety plan in accordance with the Phase Two guidance for offices. While the plan does not need to be submitted to the State, employers must do three things:1. Develop a plan in accordance with the guidance (A plan template is available on the State’s website) 2. Post the plan in a conspicuous location in the office, and 3. Affirm online that they have read and understand their obligations to operate in accordance with the guidance.
Phase Two office guidance contains requirements related to six components, including screening of employees and visitors, physical distancing, protective equipment, hygiene and cleaning, communication, and confirmed and suspected cases of COVID-19.
Screening of Employees & Visitors:
- Employers much implement mandatory daily health screening practices (screenings may be performed remotely). If an employee is not coming into the office that day, they do not need to undergo screening. For example, if an employee only reports to the office 3 days a week, they only need to be screened on those 3 days.
- At minimum, screening is required of employees and visitors using questionnaires asking about:
- COVID-19 symptoms in past 14 days
- Positive COVID-19 tests in past 14 days
- Close contact with confirmed or suspected COVID-19 cases in past 14 days
- Employers must review responses and retain records for review
- Employers must identify a contact person for individuals to notify if answers change
- Employers should coordinate with building managers to facilitate screenings (tenants are responsible for screening their own employees & visitors, unless otherwise agreed upon).
- All employees in the same job category should be subject to the same screening requirements
- In-person screening is recommended to be done by a medical professional, or someone in HR.
- Adhere to current social distancing guidelines
- Provide in person screeners with person protective equipment (PPE), at minimum a face covering and adequate training.
- Adhere to ADA confidentiality requirements (phase 2 guidance prohibits employers from keeping records of employees health data such as temperature data).
Types of Screenings:
- Temperature Checks: Temperature checks may be implemented as they are currently permitted under the ADA’s “direct threat” exception during COVID-19.
- Diagnostic Testing: Indicates whether the person is currently infected with COVID-19. The EEOC has temporarily approved diagnostic testing, and employers should ensure that any tests being implemented are accurate and reliable. Employers can require that employees get COVID-19 tested in order to return to the work place.
- Antibody Testing: Indicates whether the a has developed antibodies for COVID-19, meaning they’ve been exposed to the virus previously. The CDC recommends against using antibody test results to make decisions about employees returning to the work place. Employers cannot require that employees get antibody tested in order to return to the office.
- Offices are limited to 50% occupancy of what is written on their certificate of occupancy
- Reduce interpersonal contact (A/B schedules, adjusted hours)
- Six feet distance must be maintained at all times, unless the safety of an activity relies on being closer. When social distancing cannot be adhered to, face masks/coverings must be worn.
- Consider signage systems (especially for bi-directional traffic) and social distancing markers throughout the workplace
- To maintain physical distancing at workstations, modify or restrict the use of workstations so that employees are six feet apart, install physical barriers (e.g., Plexiglas), or require the use of face coverings.
- Establish protocols for small spaces like elevators, supply rooms and enclosed offices such as one individual in at a time, or 50% occupancy if face coverings are worn.
- Establish protocols for restrooms and break rooms.
- Limit the sharing of objects such as tools, laptops, notebooks, phones, screens, and writing utensils. If not possible, require workers to wear gloves and perform hand hygiene before and after use.
- Non-essential common areas (e.g., gyms, game rooms) must remain closed. Consider keeping non-essential amenities closed as well (e.g., vending and coffee machines).
- Continue to encourage the use of video or teleconferencing, and remote work. Consider implementing a remote work policy (The policy should address reimbursement of expenses, which may be required under state law. Reimbursement may also be required under employment contracts, policies, and CBAs.)
- When in person meetings are needed maintain social distancing (sit every other chair); and hold meetings in open, well ventilated areas.
- Limit non-essential travel and visitors and establish designated areas for pickups and deliveries as needed.
Personal Protective Equipment (PPE):
- Provide acceptable (cloth masks, surgical masks, face shields, etc.) face coverings at no cost to employees, but employees must be permitted to bring their own if they prefer
- Require workers and visitors to wear face coverings in common areas and when social distancing cannot be maintained.
- Train workers and contractors (if receiving PPE from you) on how to put on, take off, and clean/discard PPE.
Hand Hygiene & Cleaning:
- Regularly clean and disinfect the workplace using registered disinfectants in accordance with CDC and DOH guidance. Cleaning should occur at least after each shift, daily, or more frequently, as needed.
- Arrange for more frequent cleaning of high-risk areas (e.g., restrooms).
- Workstations and tools must be cleaned and disinfected between users.
- Maintain a cleaning log that documents the date, time and scope of cleaning.
- Provide employees with cleaning supplies for commonly touched objects and surfaces and place hand sanitizer throughout the office with at least 60% alcohol
- Hand washing stations should be supplied with soap, warm water, and paper towels.
- Place receptacles around the office to dispose of PPE
- Prohibit shared food and beverages, and encourage employees to bring meals from home
- Consider implementing clean desk policies, install touch free water fountains, trash cans, and hand dryer
- Post signage reminding people to adhere to proper hygiene, social distancing rules, appropriate use of PPE, and cleaning/disinfection protocols.( Consult your local health department’s website or the CDC’s website for signage).
- Maintain a log of every person, including employees and visitors, who may have close contact with other individuals at the work site or area.
- Businesses should provide building managers with a list of essential visitors.
- Coordinate with landlords and other tenants regarding procedures in common areas and elevators
Confirmed & Suspected Cases:
- If there is a confirmed or suspected COVID-19 case, the employee with the suspected or confirmed case must be sent home to quarantine in accordance with DOH guidance. Close areas used by that person and clean and disinfect those areas (e.g., offices, bathrooms, and shared equipment). Consider hiring an external cleaning company.
- Do NOT disclose the name of the infected employee. Provide just enough information to allow others to assess their level of risk.
- In the event of a suspected or confirmed case, notify: The state and local health departments (provide a list of all individuals present in the office within 48 hours before symptoms/diagnosis) and cooperate with contact tracing efforts, including notification of potential contacts, building management, and employees who work in that office of the case and Others with whom the employee may have had close contact.
- Consider OSHA reporting requirements: Coronavirus is reportable to OSHA when an employee is infected in the workplace. If the employee is hospitalized, a report must be made within 24 hours. If an employee dies, a report must be made within eight hours.
Consider a pre-return survey to help plan for office reopening. This survey may be used to identify employee’s preferences regarding a phased reopening, whether the employee may not be able to return to work due to childcare responsibilities, issues commuting, because they are at higher risk for COVID-19, etc. Employees may need new accommodations when returning to work. Examples of reasonable accommodations include continued remote work, additional PPE, erecting barriers, modifying job functions and/or work hours.