Devine Millimet | NH Law Firm

Steps to Consider for Reopening Your Business

Devin K. Bolger, Esq.
Margaret "Peg" O'Brien, Esq.

June 12, 2020

As of the date of this E-alert, New Hampshire’s Governor Sununu has announced that he will allow New Hampshire’s Stay at Home Order to expire as of Monday, June 15, 2020 at 11:59 p.m., along with the cap on gatherings of 10 or less.  He also released additional reopening guidelines for a variety of businesses and activities, including gyms and road races.  Massachusetts Governor Charlie Baker has crafted a similar plan for reopening Massachusetts.

Employers will encounter many difficult questions as they phase back into full-time operations.  This E-alert is intended as a resource guide and prompt for addressing those many questions and concerns.

  1. Safety Committees

A good starting point for New Hampshire employers is to ensure compliance with a workplace safety law that predates COVID-19.  By statute, employers in New Hampshire with 15 or more employees must establish a “Joint Loss Management Committee” consisting of equal members of employer and employee representatives.  The Committee is required to establish a written safety plan and file a summary of the plan (Safety Summary Form) with the NH Department of Labor (DOL).  The plan should identify the Committee members, list potential safety and health hazards at the workplace, specify emergency response procedures, identify persons qualified to take corrective actions on safety and health hazards, establish procedures for communicating safety and health concerns with sub-contractors or outside service providers, and include policies for health- and safety-related discipline and provision of adequate resources for safety purposes.  The Committee must review and update the written safety plan at least once every two years and must meet on a quarterly basis.  The statute and regulations provide more detailed requirements.

The Committee should review those regulations as well as DOL guidance when creating and updating safety plans.  The Committee should also consider how COVID-19 issues might fit in.  There are abundant (perhaps overwhelming in number) resources for employers seeking to address COVID-19-related health and safety concerns in the workplace.  Committees should keep up with guidance from the EEOC, CDC, and OSHA as well as various state agencies.  Committees should also be aware of recent industry-specific and universal mitigation guidelines from Governor Sununu, and similar industry-specific and universal mitigation guidelines from Governor Baker.  The Business & Industry Association of New Hampshire has compiled a helpful collection of resources

As part of the required program review process, employers should also consider establishing a subcommittee or task force to develop a COVID-19-specific reopening plan.  The plan might consist of return-to-work protocols and a pandemic safety policy (including mitigation-risk strategies, sanitation procedures, and health screening), and other policies that address telecommuting, treatment of persons with communicable diseases, and wage-and-hour issues implicated by COVID-19.  Essential businesses that have remained open while the Stay at Home Order was in place likely have been observing these practices, many of which were referenced in Governor Sununu’s recent Emergency Orders, and should continue to do so.

  1. Return-to-work Protocols and Policy

Employers should review and continue to monitor guidance from federal agencies as well as all emergency directives and Stay at Home 2.0 guidance from Governor Sununu.  These sources will continue to inform return-to-work protocols.  Companies would be well advised to adopt a return-to-work or pandemic safety policy, as there will be specific COVID-19-related conduct expected of employees (e.g., face masks or social distancing), for which fair warning should be provided prior to any disciplinary action.

At a minimum, protocols should address infection-control practices, workplace sanitation, and screening for COVID-19 symptoms.

       A. Infection-control practices

Employers should encourage employees to engage in practices such as:

Employers should also consider taking measures such as:

  • Reconfiguration of desks and chairs in offices, breakrooms, and open spaces to encourage distancing;
  • Marking up the workplace to encourage distancing (e.g., using tape to demarcate areas around desks and offices);
  • Staggering break times;
  • Establishing flexible worksites and work hours (see telecommuting below);
  • Providing hand sanitizer, contact-free trash receptacles, and paper towels;
  • Requiring employees to stay home if sick or experiencing COVID-19 symptoms (see screening measures below);
  • Placing signage related to all of the above around the workplace.
       B. Workplace sanitation

The CDC has published guidance for cleaning and disinfecting workplaces.  This guidance could supply the framework for workplace sanitation procedures and schedules.  Those procedures should address cleaning and sanitation when an infected person is in the workplace.        
       C. COVID-19 symptom screening

New Hampshire’s Universal Guidelines provide for specific screening steps to be taken with employees returning to the workplace, including temperature screens.   This screening process should be incorporated into all New Hampshire companies’ return-to-work protocols.  Recent EEOC guidance provides that, during this pandemic, employers may measure an employee’s temperature and answer questions related to COVID-19 symptoms without violating the ADA (common symptoms include fever or chills, cough, shortness of breath or difficulty breathing, fatigue, muscle or body aches, headache, loss of taste or smell, sore throat, congestion or runny nose, nausea or vomiting, and diarrhea).  These screening measures must be applied universally to all employees reporting to work.  As with all medical information, the fact that an employee had a fever or other symptoms would be subject to ADA confidentiality requirements and kept separate from general employee personnel files. 

Any employee who is experiencing any COVID-19 symptoms must be instructed to stay home.  Should an employee become ill with COVID-19 symptoms during the workday, that employee should be instructed to leave the workplace immediately, seek medical care, and notify his or her supervisor of the situation by phone or email.

  1. Telecommuting Policy
The prospect of returning to a physical workplace raises interesting questions for employers and employees.  Fear of workplace transmission of COVID-19 will likely linger for as long the virus is around.  And now that modern technology has made telecommunicating a possibility in many industries, both parties to the employment relationship are asking whether a full-scale return to the physical workplace is the best path forward.  Employees have grown accustomed to the convenience of working from home, and employers are questioning the financial wisdom of maintaining physical office spaces.  Telecommuting looks like the way of the future.

On the other hand, not all businesses are suited for remote work, and for all other businesses that might eventually shift to remote workplaces, change will likely be gradual.  Employers with physical workspaces who plan to reopen should consider adopting or modifying existing telecommuting policies.  Policies should identify which, if any, positions are eligible for telecommuting and which are not suitable for remote based work.  As a result of COVID-19, most employers had a crash course on teleworking, and likely have valuable insight into which positions succeeded remotely and which did not.  As part of this review, job descriptions should be reviewed and updated as necessary.

As part of a telecommuting policy, employers should clarify how employees will provide accountability for work performed on a remote basis, and what the typical hours of work will be.  Managers should also be instructed on how to supervise on a remote basis, and maintain a system of oversight, communication and collaboration.  Many managers have no prior experience with this type of remote-based relationship with co-workers.

Telecommuting will also implicate wage and hour issues.  It is important to have strict timekeeping guidelines for nonexempt employees who are permitted to work from home.  Nonexempt employees must track all hours worked.  Employers should also be vigilant about setting and adhering to schedules for hourly employees, and avoiding phone calls or text messages that might be seen as requests to work after hours.  It is likewise important for employers to consider the costs that employees might incur to work from home, as these costs could affect a claim for wages or breach of employment contract.   The US Department of Labor has posted guidance on wage and hour concerns during the pandemic.   

Other issues to be considered are the application of the workers’ compensation laws to the remote-based location, as well as the reinforcement of cyber-security protocols to ensure that employees are not exposing the Company to theft or other breaches via their use of the internet.

  1. Communicable Disease/Illness Policy

Handbooks should be updated to include a Communicable Disease and Illness Policy.  The policy should identify communicable diseases and state that:

  • Sick employees must stay home and not appear for work. Guidance should be provided on the types of illness and symptoms that should result in an employee remaining at home.
  • Decisions involving persons with communicable diseases shall be based on current and well-informed medical judgments.
  • The employer will not discriminate against any applicant or employee based on the individual having a communicable disease and will provide reasonable accommodation as needed.
  • The policy should provide notice that the employer reserves the right to exclude a person with a communicable disease from the workplace if the employer finds that such restriction is necessary for the welfare of the person with the communicable disease or others.
  • The policy should also instruct all parties that the privacy of employees with communicable diseases will be maintained.
  1. Employment Agreements and Wage and Hour Issues

As companies continue to reopen, employers must ensure compliance with applicable wage and hour laws and compensation agreements.  Below is an overview of some COVID-19 particular concerns regarding this topic.      

       A. Exempt Status under FLSA

If an exempt employee’s position has been substantially changed, either due to changes to specific job duties or a reduction in the employee’s schedule or pay, then employers should evaluate whether any of these changes have impacted the employee’s exempt status.  Most exempt employees must be paid a minimum of $684 per week, and this amount may not be reduced due to a “part-time” schedule, without risking the exempt classification.  Further, any changes to the schedule, along with any reduction in pay, should be made in advance of the pay period for which the change will occur.  For example, if an employer plans to reduce an exempt employee’s weekly schedule from 5 days to 4 days, along with a prorated reduction in salary to reflect the reduced schedule, then the employer must communicate these changes to the employee in writing before the changes go into effect.

Additionally, some employers may have reclassified previously exempt employees to nonexempt due to a change in business operations during the height of the state COVID-19 shutdowns.  Employers should be careful when returning such employees back to exempt status and should be aware of any notice requirements that must be given to employees when changing their classification.  It is important to keep in mind that fluctuating from exempt to nonexempt status may place the exempt status of the employee in jeopardy.  It is presently unknown whether a second wave of COVID-19 will occur in the fall, and therefore businesses should proceed with caution if repeatedly changing the status of an employee.

       B. Using Vacation and Other Paid Time Off

While businesses are choosing to reopen, some employees may still feel unsafe going into work due to COVID-19.  In addition to determining whether allowing these employees to stay home is a reasonable accommodation under the ADA or required pursuant to a separate leave of absence, employers should consider whether they can appropriately require such employees to use vacation or other paid time off benefits during this time.

Separately, some businesses are struggling with how to manage employee travel during vacations.  With the lifting of the Stay at Home Order, employees may be once again hopping on planes to travel.  Keeping in mind that many places across the United States still have surging cases of COVID-19, If a company anticipates placing any restrictions on an employee’s right to return to work following a vacation due to safety concerns, or believes that it may limit vacation approval due to customer / patient back log issues or otherwise, then the company may want to provide guidance for employees on anticipated protocols so as to avoid any communication problems or wage and hour complaints.  Setting proper expectations around these issues is paramount. 

       C. Term Employment Agreements

Many employers who hire on a term basis found themselves unclear as to their obligation to pay employees who could not work because of the Stay at Home Order.  Looking ahead to the future, employers should consider introducing carve-outs in their new employment contracts, or as provided at the time of contract renewal, that would prevent the obligation to pay employees in the event they should become unable to work because of a public health crisis or other natural disaster, or maybe even as broad as any unforeseeable business interruption.

Employers with questions about how to successfully create and administer COVID-19 reopening procedures in their workplaces may contact any member of Devine Millimet’s Labor and Employment Practice Group.  Devine Millimet’s Labor and Employment Practice Group will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates on Devine Millimet’s COVID-19 Resources Page.

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