As the country slowly reopens, you’re sure to have questions about what’s best for your business and its returning employees. We do our best to answer!

We are ready to reopen the business after a COVID-19 closure. Can we recall only some employees back to work?

Yes. If you are bringing back only certain positions, common as businesses return with reduced hours or service offerings, be sure to document your business reasons for doing so. You should also document your objective, job-related reasons (seniority, past performance reviews) for bringing back some, but not all, employees in a particular job classification. Documentation makes your choices easier to defend should they come into question.

Can we screen returning employees for COVID-19?

Yes. Historically, employers have not been allowed to ask about employee health or to conduct medical exams like temperature checks. But under the current circumstances, the Equal Employment Opportunity Commission has allowed screenings for COVID-19 symptoms, as the virus is a direct threat to others in the workplace. This allows employers to ask about virus-related symptoms, to require employees to self-report their health, and to take employee temperatures.

If screenings are right for your business, you must screen all employees equally, or you may invite a discrimination lawsuit. You must also remember that all employees’ health information, including a lack of significant findings, must be kept confidential per the Americans With Disabilities Act.

What should we do if an employee discloses that a family member or roommate has COVID-19?

The CDC advises employees who share a household with anyone diagnosed with COVID-19 to self-quarantine for 14 days after their last exposure. They should also take their temperature twice daily and watch for symptoms such as fever, cough, chills, breathing troubles, muscle aches, headache, sore throat, and sudden loss of taste or smell. Special measures are not recommended for those exposed to an asymptomatic carrier.

Can we permanently replace employees who don’t feel safe to return to work?

Think carefully before you replace an employee who won’t work because of COVID-19 concerns. Remember:

• Recalled employees may be entitled to job-protected leave under city ordinance, state law, or the federal Families First Coronavirus Response Act (FFCRA).
• Recalled employees in a high-risk health category may be entitled to reasonable accommodation under state law or the Americans With Disabilities Act if they do not qualify for or have exhausted their FFCRA leave. Depending on the work environment, reasonable accommodation may include working from home or taking unpaid leave.
• Recalled employees who live with someone in a high-risk health category are not entitled to reasonable accommodation under federal law, but there is wisdom in allowing them to work from home or take unpaid leave. This is a time to be flexible and compassionate with your employees, especially if you want to keep talent on board.
• OSHA protects an employee’s refusal to perform a task when all of these criteria are met: 1) The employee genuinely believes that an imminent danger exists; 2) The employee asked the employer to eliminate the danger, and the employer failed to do so (where possible); 3) A reasonable person would corroborate the real danger of serious injury or death; and 4) The danger is so urgent as to render it impossible to correct timely through regular channels, such as an OSHA inspection.
• State and local law may provide additional employee protections.

Your employees may understandably feel fearful during this unprecedented time! Instead of rushing to replace them, consider ways to encourage them to feel safe enough to report to work, including detailing any safety measures you have implemented. Some companies are also offering hazard pay or additional PTO for employees who must report to a work site.

In conclusion

Whether employer or employee, this is a crazy time for all of us. We can only hope to support one another through it all! And as always, be sure to check with your legal team before finalizing any sensitive, employee-related changes. Always better safe than sorry!