It seems each day another company is extending their work from home time. Massive enterprises like Google, Amazon Corporate, and Indeed have already postponed a return to the office until 2021, whereas others like Facebook, Twitter, Slack, and Zillow have made remote work permanent.
However, many businesses still face the decision of whether to return to the office, balancing the benefits of returning against the risk of exposure. As general counsel, you are tasked with not only helping your company find this balance, but also ensuring the company is legally compliant. Legal obligations will vary based on where your business is located and in what industry. Although it can be helpful to look at what other companies across the country are doing, keep in mind they may have different regulations to follow.
Reopening must begin with a plan. You must decide ahead of time how you are going to keep workers safe, how you will monitor the health of employees, what you will do in case of a positive case, and what options you will offer employees. Let’s walk through the key considerations to evaluate ahead of reopening.
CHECK LOCAL, STATE, AND FEDERAL REGULATIONS
Where your business is located will influence what policies you put in place, given that they must align with government regulations. There will be certain protocols to follow related to the maximum capacity allowed in the office, mask wearing, and how to report cases. There are various resources you can look to for learning the guidelines:
- The Centers for Disease Control and Prevention (CDC) has resources to help businesses and workplaces navigate the virus.
- OSHA provides guidance for returning to work.
- The official government websites of your state, city, and/or county will provide state and local guidelines.
- The U.S. Chamber of Commerce provides state-by-state reopening guidelines.
REVIEW INSURANCE POLICIES
Many insurance companies have begun issuing regulations and requirements for businesses, such as the consent required from employees or customers. You likely already reviewed your insurance coverage to check whether you were covered for event cancellation or business interruption, but don’t forget to recheck prior to opening. Another consideration is workers’ compensation. If an employee were to contract the virus after returning to the office, he or she might seek coverage. Read up on the details of your policy to ensure you know what is and is not covered.
CREATE A COVID WAIVER
One of the best ways companies can manage risk and return to work is through a basic waiver for employees to review. It should outline what you are doing to keep workers safe, obtain consent by asking employees to acknowledge and agree they are aware COVID exists, and confirm, should they show up to work sick, that they could get others sick. It’s crucial that employees are allowed to review the waiver and make a decision for themselves on whether they return to work. A waiver will not be as effective if there are no options available, and forcing employees to return to work and sign an agreement will put you at risk of future class-action lawsuits.
THINK THROUGH ADDITIONAL AGREEMENTS
Beyond a COVID waiver, reopening will require several types of agreements and policies. Some of the most pertinent assessments, waivers, and consents include: daily health certifications, distancing policies, mobile symptom screening, and contract-tracing consents. Create a general policy with information such as hygiene best practices, modified work schedules, what should be done if an employee experiences symptoms, and how to handle exposure to the virus. If you plan to test employees, an informed consent is critical. States have various requirements for what the consent should include, but most incorporate these elements:
- a description of the test
- a statement of the test’s purpose
- clarification on whether the test was ordered by a physician or is self-directed by the individual
- information on the reliability of test results
- identification of the person(s) with whom the test results may be shared and why
- a general description of the disease or condition that is being tested
PROVIDE NEW WAYS TO SIGN AGREEMENTS
Part of reopening is determining how to account for social distancing across your business. Many processes cannot be done the same way they were previously. A perfect example is signing contracts. In order to properly social distance, pen and paper are no longer an option. Consider the HR contracts to put in place and ask yourself:
- Do you have a way to hire employees remotely?
- Is there a self-service option for sales teams to issue agreements with new customers?
- What about the return-to-work waivers?
- Do you have a scalable way to capture consent?
You obviously want to get all employees to participate. With daily certifications and symptom screening, you must make the process as easy and seamless as possible for employees. This means eliminating the friction of pen and paper or even PDFs and eSignatures. Employees have enough to worry about when returning to work, so you don’t want to add to that by requiring them to find a document to download, sign, and upload each day. Consider setting up your agreements as a one-click contract, where employees can take one simple action to execute the agreement.
STORE RECORD OF ACCEPTANCE
Not only must you have agreements in place and new methods of capturing acceptance, but you also must ensure you are keeping records. Insurance might require information on consent waivers issued to employees. If an employee seeks workers’ comp from contracting the virus at work, they must prove the infection occurred at work. Records of symptom screening and waiver acceptance will play a big role in that. Not to mention, with the potential of lawsuits from employees or customers, you want to ensure you are able to produce records at any moment.
The number-one priority is to reopen safely. Don’t feel rushed to reopen. Take time now to plan for how your business can open in a legally compliant and safe manner.