Return to the Workplace Part 1: Physical and Logistical Considerations

Employers planning a return to the workplace will have to confront a host of novel considerations aimed at reducing human-to-human contact during the COVID-19 pandemic. In many cases, workplaces and workplace policies have been designed to promote collaboration, not isolation. However, as a result of COVID-19, employers will have to reassess fundamental assumptions that previously governed how they structured their operations.

Employers should consult guidelines issued by the Occupational Safety and Health Administration (“OSHA”), and the Centers for Disease Control (“CDC”), as well as state and local governments.

New York State has announced a reopening plan called New York Forward, reported in our prior article (see “Governor Cuomo Announces Plan to Reopen New York”) and has both a website and a New York Forward “Book.” Guidance from the New York City Department of Health can be found here.

In New York State, employers will be required to develop a written safety plan and New York has provided a Safety Plan template, which employers may, but are not required, to use. The Safety Plan does not need to be submitted to a State agency, but it must be posted in the workplace and made available to the New York State Department of Health (DOH) or local health or safety authorities in the event of an inspection. For the construction industry, the first non-essential industry allowed to reopen, New York State has provided Interim Guidance for Construction Activities during the COVID-19 Public Health Emergency which employers must read and then click on a link to affirm that they have read and understand their obligations under the guidance.

Other states have also issued guidance, including California (available here) and Connecticut (available here). In New Jersey, Executive Order No. 142 provides that, as of May 18, 2020, non-essential construction projects may resume and retail businesses may open for curbside pick-up only. The Executive Order also includes guidelines for both construction and retail businesses, summarized here.

Below, we note practices that employers should consider prior to and after reopening a workplace.

Maintain as Clean A Workplace as Possible

Employers should prioritize maintaining as clean a workplace as possible. Specifically:

• Conduct a “deep clean” of workplaces that have been closed prior to reopening.
• Maintain regular housekeeping practices (routine cleaning and disinfecting of surfaces and shared equipment, such as copiers) and maintain cleaning logs on site that document the date, time, and scope of the cleaning.
• Provide customers and the public with hand sanitizer, tissues, and trash receptacles.
• Provide workers, customers, and worksite visitors with a place to wash their hands.
• Discourage workers from using other workers’ phones, desks, offices, or other work tools and equipment, when possible.

Encourage Practices That Will Reduce the Spread of COVID-19

Employers can also adopt practices aimed at countering the spread of COVID-19, such as:

• Encourage social distancing among workers to keep them at least 6 feet apart. For example, develop signage and floor markings to show distance and establish one-way travel in hallways, where possible, to avoid employees passing each other too closely.
• Provide personal protective equipment (PPE), such as face masks and gloves, and ask employees to wear them. Under the New York Forward plan, employers must provide face masks to workers at no cost and businesses may not reopen if an employer cannot procure enough masks. Employers are directed to contact their county Office of Emergency Management for assistance in procuring PPE.
• Encourage workers/customers to cover coughs and sneezes.
• Encourage workers to stay home if sick.

Reduce the Number of Employees and the Contact Between Employees in the Office

Employers should seek to reduce the number of people in the office to the minimum number necessary. Specifically, employers should:

• Replace face-to-face meetings and business travel with virtual communications and implement telework if feasible. The New York City Health Department has encouraged employers to not have in-person meetings unless absolutely necessary.
• Establish alternating days or staggered shifts to reduce the total number of employees in a facility at a given time, allowing individuals to commute at different times of the day and maintain distance from each other while maintaining a full onsite work week.
• Make changes to meal and rest breaks and require employees to bring in their own meals rather than ordering in or going out during the workday.

Employers in cities will have to address additional considerations due to population density. For example, the New York City Health Department encourages employers to limit the number of occupants per elevator car and inform staff to wait for the next elevator car. Further, it advises employers to encourage staff to walk or bike to work, although that may be impractical for many employees.

Consider Physical Alterations

Employers should also consider implementing engineering controls to limit the spread of COVID-19 in the workplace. For example, where appropriate and feasible, employers should:

• Reconfigure office space to increase distances between workstations.
• Install high-efficiency air filters.
• Increase ventilation rates in the work environment.
• Install physical barriers, such as clear plastic sneeze guards.
• Install a drive-through window for customer service.
• Implement specialized negative pressure ventilation in some settings, such as aerosol-generating procedures.

Monitoring, Reporting & Isolation

Employers should operate on the assumption that there will be an outbreak in the office at some point. By operationalizing certain procedures in advance, employers can limit the potential harm to the business and its employees. For example, employers should:

• Implement health screening assessments (e.g., questionnaire, temperature check) before employees begin work each day and for essential visitors. The questionnaires should ask about (1) COVID-19 symptoms in the past 14 days, (2) positive COVID-19 tests in the past 14 days, and/or (3) close contact with confirmed or suspected COVID-19 cases in the past 14 days. Employers should review responses each day and document the reviews. Our article regarding employee testing can be found here.
• Develop policies and procedures for employees to report when they are sick or experiencing symptoms of COVID-19.
• Designate a person responsible for implementing protocol who can quickly respond to issues regarding non-compliance.
• Send home employees who have signs and/or symptoms of COVID-19.
• Notify state and local health departments and cooperate with contact tracing if an employee tests positive for COVID-19.

Employers with multiple locations should additionally consider localizing authority based on varying needs. While all locations should adhere to certain minimum requirements, some workplaces may need to implement additional considerations due to unique concerns, such as an outbreak in a particular unit, or issues regarding ingress and egress. Empowering an individual or task force to take additional action if necessary will allow a workplace to quickly respond to an outbreak, which is crucial in controlling the spread of COVID-19.

The New York Forward Safety Plan template includes a section directing employers to maintain a continuous log of every person, including workers and visitors, who may have close contact with other individuals at the work site (excluding deliveries that are performed with appropriate PPE or through contactless means). The logs do not need to include customers, but customers can be encouraged to provide contact information to enable contact tracing if needed. 

Communicate

The efficacy of these plans depends upon an employer communicating clear guidelines and requiring employees to follow them. To increase the likelihood of compliance, employers should:

• Provide training to employees to address concerns about leave, safety, health, and other issues.
• Share and discuss an outbreak response plan with employees. Allow employees to provide feedback and address issues with the plan.

Stay Informed

Employers should continue to monitor the situation closely, as the federal government, states, and cities pass new laws, issue new regulations, and/or publish additional guidance. We will provide updates as information becomes available.

Please reach out to any of our attorneys if you have any questions or need assistance in developing a plan to reopen your workplace.