The New Hybrid Workplace – How to Reopen Your Office

Fri, 11/06/20

By Dawn Ross, Partner

As Shelter in Place restrictions continue to ease throughout California and employees return to the office, it is important for employers to be aware of the ever changing requirements and expectations to keep your staff and the public safe.

Below is a checklist for employers about how to safely reopen, while accommodating employees who need to continue to work at home under the Families First Coronavirus Response Act (“FFCRA”) and/or the Family and Medical Leave Act (“FMLA”).  Employers should also be aware of several other considerations that apply, including reasonable accommodation and leave obligations under the Fair Employment and Housing Act (“FEHA”), the Americans with Disabilities Act (“ADA”), and the California Family Rights Act (“CFRA”).

A. Create a Written Return to Work Plan

Most employers will return to the office in stages, with some employees continuing to work at home for an extended period of time.  This new hybrid workplace is likely to become the norm over the next several years.  Instead of allowing this to happen in a haphazard way, create a written return to work plan detailing who will be returning to the office, when they will be returning, and outlining what precautions have been put into place to keep employees and the general public safe.  Many of these steps will take a month or more, so start planning early.

1. Survey Your Employees.  In deciding who will be returning to the office, consider surveying your employees to find out who wants to return, who does not want to return, and who has medical or childcare issues that prevent their return.
2. Evaluate Your Workspaces.  Until a large portion of the population has been successfully vaccinated, employers will continue to need to implement social distancing guidelines.  This will mean moving employees into empty spaces, repurposing meeting rooms, installing plexiglass or other barriers, implementing different work shifts; installing workflow arrows, and installing air purifiers and/or HEPA filters.
3. Order PPE.  Order masks, gloves, hand sanitizer stations, cleaning supplies, and any other PPE needed for your workplace.
4. Daily Health Checks.  The Centers for Disease Control and Prevention (“CDC”) and the Occupational Safety and Health Administration (“OSHA”) recommend that all employers consider some kind of health check for employees coming into the workplace (other than home).  In addition, several counties have issued Health Orders instructing all employers to create policies that require employees to complete a health check before coming into the office. A number of counties have created a daily health check app for this purpose.
5. Temperature Checks & COVID-19 Tests.  Employers are also allowed to conduct temperature checks and to require employees to take COVID-19 tests (at the employer’s expense).
6. Plan for a Positive COVID-19 Test.  Employers should prepare a written plan for what steps will be taken if and when an employee tests positive for COVID-19.  This plan should address contact tracing, notifying local health officials, and cleaning the affected area, and must include a written notification to employees working in proximity to the positive employee without disclosing the employee’s identity.  AB685, codified at Labor Code section 6409.6, sets forth the details of what must be included in the employee notification effective January 1, 2021.  This notification is required to be sent within one business day of an employee testing positive or receiving an isolation order from a public health official.
7. Update IIPP Plan.  Cal/OSHA has now issued guidance requiring employers to include COVID-19 prevention measures in their Injury and Illness Prevention Programs (“IIPPs”).
8. Workers’ Compensation.  In California, there is now a rebuttable presumption that an employee testing positive for COVID-19 was “injured” at work if confirmed with a positive test within fourteen (14) days of performing labor at a place of work.  Employers should be prepared to initiate the claims process if an employee tests positive.

B. Employees Who Continue to Work From Home

1. Work from Home Expectations.  The CDC and local guidance indicate that employers should continue to have employees work from home as much as possible, especially those over 65 or in medical high-risk groups.  We expect these directives to work from home will continue for months into the future.  We recommend creating a written work from home policy that clearly states your expectations and requires your employees to commit to those expectations.
2. Paying Expenses.  Labor Code section 2802 requires employers to reimburse workers for “all necessary expenditures or losses incurred by the employee” in the course of the job.  This only applies if the employee is  obligated to work from home (not if it is optional).  The obligation to reimburse includes things like ink, paper, internet, and cell phone, and applies even if the employee does not incur any additional costs.
3. Cal/OSHA Workplace Safety.  Workplace safety rules apply to home offices.  Employees should be provided with adequate equipment such as ergonomically correct desks, chairs, and keyboards.
4. Changing Employees from Salaried Exempt to Non-Exempt.  Many employers have had to re-structure which may have left managers not managing anyone or, at least, not working full-time any longer.  If you have an employee who is not performing sufficient exempt work, you must reclassify them to non-exempt/hourly status to avoid potential legal exposure for wage claims.  The best way to reclassify an employee is to explain the reasoning, and then make sure they are fully prepared to track their hours and take their legally mandated meal and rest periods.
5. Make Employment Decisions in a Methodical and Documented Manner.  When you are downsizing and making other decisions that affect your workforce (e.g., deciding who is permitted to work from home and who is required to come to work, or whether tasks and opportunities are being spread evenly) be careful that your decisions are not discriminatory or appear to be discriminatory.  One way to ensure your decisions do not have an adverse impact and to create a record of your non-discriminatory process is to document the process by:
   • First, evaluate the needs of the office and the available budget;
   • Second, review the collective bargaining agreements and design a fair, consistent, and nondiscriminatory selection process based on both the process set forth in the bargaining agreement and as many objective criteria as possible; and
   • Third, document conversations with employees to track who is willing to make changes and who is not, so that it is clear what decisions were made by the employee and which were made by the employer.
6. Handling Employees Who Do Not Want to Return to Work.  When you contact employees to return to work, it is possible they will not want to return for various reasons.  Being told “no” is always an uncomfortable position to be in, but employers must take a measured approach to make sure the employee does not have a legally protected reason to say “no.”  For example, employees who band together to refuse to work because they feel the employer has not taken sufficient steps to minimize COVID-19 exposure may be protected under the NLRA for union concerted activity.

Employers should be reasonable when discussing concerns held by employees to come back to work and approach it in the same manner as the “good faith interactive process.”  This is not legally required but is a good way to ensure that you have done enough to feel confident that the employee does not have reasonable grounds to refuse to return to work.  Also, the conversation may unearth other rights the employee may have such as the right to take FFCRA-protected leave (see below) or FMLA leave.

If employees do not want to return because they are making more with unemployment benefits, you can advise them that they will not qualify for unemployment if they refuse to return to work.  You can then decide whether to put them on an unpaid leave of absence or consider them to have voluntarily resigned.

C. Families First Coronavirus Response Act (“FFCRA”)

The FFCRA provides paid time off for employees who cannot work due to COVID-19-related illness, a lack of childcare, or because they need to help their children with remote school.  The Department of Labor has issued an extensive Questions and Answers elaborating on the application of the FFCRA.  Currently, the FFCRA is scheduled to expire on December 31, 2020, but will likely be extended.

The FFCRA provides paid leave (that involves a tax credit for the employer) for the following reasons:

• (i) The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
• (ii) The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
• (iii) The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
• (iv) The employee is caring for an individual who is subject to either (i) or (ii) above;
• (v) The employee is caring for his or her child if the school or place of care of the child has been closed, or the childcare provider of such child is unavailable, due to COVID-19 precautions; or
• (vi) The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Amount of Paid Sick Leave.  All eligible full-time employees will have up to 80 hours of paid sick leave available to use for the qualifying reasons above.  Eligible part-time employees are entitled to the number of hours worked, on average, over a two-week period.

For employees with varying hours, one of the following two methods for computing the number of hours paid will be used:

• The average number of hours that the employee was scheduled to work per day over the six-month period ending on the date on which the employee takes leave, including hours for which the employee took leave of any type; or
• If the employee has worked fewer than six (6) months, the expected number of hours to be scheduled per day at the time of hire.

Rate of Pay.  Paid emergency sick leave will be paid at the employee’s regular rate of pay or minimum wage, whichever is greater, for leave taken for reasons (i) – (iii) above.  Employees taking leave for reasons (iv) – (vi) above will be compensated at two-thirds their regular rate of pay or minimum wage, whichever is greater.  Pay is capped at:

• $511 per day and $5,110 in total for leave taken for reasons (i) – (iii) above;
• $200 per day and $2,000 in total for leave taken for reasons (iv) – (vi) above.

Interaction with Other Paid Leave.  The employee may use emergency paid sick leave under this policy before using any other accrued paid time off for the qualifying reasons stated above.  Employees on expanded FMLA leave under this policy may use emergency paid sick leave during the first ten (10) days of normally unpaid FMLA leave.

Expanded FMLA.  In addition to the extra sick leave, expanded FMLA leave is available to eligible employees who are unable to work (or telework) due to a need to care for their child when their school or place of care has been closed, or the regular childcare provider is unavailable due to a public health emergency with respect to COVID-19.  The FMLA leave is twelve (12) weeks and provides pay at the same rate as described above for this type of leave.

D. Dealing With the General Public

1. Required Postings.  Most cities and counties have issued a list of required public postings.  Make arrangements for putting these in all areas open to the general public.
2. Refusing to Serve Customers Who Will Not Comply with Safe Practices.  There will always be some people who refuse to wear a mask or otherwise comply with safe practices.  In your Return to Work Plan, include a section advising employees how to deal with these situations.  For example, give them a card to hand to the person, indicating that they will not be served and must leave the building.  Include a number they can call to complain.  Tell the employee whom they should call if the situation escalates and/or the customer refuses to leave.
3. Consider an Assumption of the Risk Notice for Customers.  Many private companies are adopting an Assumption of the Risk policy for customers who visit their property.  The state has not weighed in on whether such an agreement would be enforceable.  It is possible that the state could declare such agreements entirely unenforceable or partially unenforceable depending on the circumstances.  Public employers could similarly consider posting an Assumption of Risk policy for those using their facilities

The new “normal” has an enormous number of moving parts for employers, but with early preparation and continual monitoring, employers and employees can achieve a safe and productive workplace.

Dawn Ross is the managing partner of Carle, Mackie, Power & Ross LLP, and leads its Labor & Employment Group.  Ms. Ross provides counsel and litigation support to both public and private employers.  Ms. Ross can be reached at dross@cmprlaw.com.