As the summer started, it looked like COVID-19 had finally been beaten. Infection rates and hospitalizations had dropped dramatically, vaccination numbers were rising and businesses across the Garden State were opening back up. The story remains largely good news. While infection rates have increased, and indeed have skyrocketed in other states, New Jersey’s infection rates remain far off their highs. The state continues do an impressive job in making vaccines available and there is a sense of normalcy in the air. If your business has not done so already, likely you are considering bringing your employees back from remote work, or otherwise expanding your number of on-site employees. However, there are a number of safety and legal measures your business should consider before doing so.
Policies, Policies, Policies
As an employer, your worst nightmare is to finally get your staff back on site, only to have a COVID outbreak take place. No one wants to see their valued employees’ health endangered, and no one wants to face potential litigation as a result of workplace exposure. Your best way of protecting both the health of your employees and your legal liability is through well-enforced policies.
What types of policies should you be creating?
1. Mask Policies. Policies concerning the use of personal protective equipment including masks. CDC and state agency guidance on mask usage continues to evolve and leaves most of us bewildered. It is our belief, out of an abundance of caution, that businesses should continue to require the use of masks, especially in client-facing roles or in indoor situations where social distancing is not possible.
2. Sanitization policies. You should be requiring regular deep cleaning of workspaces, either by staff or outside cleaning contractors. If you are requiring employees to sanitize their workspaces, you should provide them with sanitization supplies.
3. Exposure notice policies. You should have a policy requiring your employees to notify you of symptoms or of potential exposure. Unfortunately, you will have to rely upon your employees’ willingness to answer these questions truthfully but posing questions about symptoms and exposure on a daily basis is helpful from both a practical and legal perspective. Additionally, given the high infection rates that have emerged in some states in recent weeks, you should consider inquiring whether employees have visited those states recently.
4. Testing policies. Consider whether you will require proof of a negative COVID test after an employee has shown symptoms, been exposed to someone who tested COVID-positive or traveled to a high-COVID infection area. If you are going to do so, you should consider whether you will reimburse your employees for testing.
5. Quarantine policies. Consider whether you will require quarantining, which you certainly should be doing in the event of a positive test, and whether you will be paying your employees during any required quarantine.
6. Communication policies. CDC guidelines states that “if an employee is confirmed to have COVID-19, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality as required by the Americans with Disabilities Act.”
But as important as developing these policies is, implementing these policies consistently is critical. You need to communicate the policies clearly to employees and supervisors and make sure they are being followed. You might consider having them sign the policy as an acknowledgement of having read it and agreeing to the policy requirements because of its importance to office safety.
Vaccination has been the key to combating the spread of COVID-19 and having pro-vaccination workplace policies makes good sense from public health and legal liability perspectives. The State of New Jersey has made clear that workplaces “can require that an employee receive the COVID-19 vaccine in order to return to the workplace, unless the employee cannot get the vaccine because of a disability, because their doctor has advised them not to get the vaccine while pregnant or breastfeeding, or because of a sincerely held religious belief, practice, or observance.”
Additionally, employers “generally may request medical documentation to confirm a disability or to confirm that an employee who requests a reasonable accommodation on the basis of pregnancy or breastfeeding was advised by their doctor to seek such accommodation. Employers must ensure that all information about an employee’s disability is kept confidential and must maintain all information about employee illness as a confidential medical record.”
Finally, if a sincerely held religious belief, practice, or observance precludes an employee from getting a COVID-19 vaccine, an employer generally may not question the sincerity of an employee’s religious beliefs, practices, or observance, unless the employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance. In that case, the employer may make a limited inquiry into the facts and circumstances supporting the employee’s request.
The decision to require vaccination is a difficult business decision but one that employers are increasingly making. Should you decide on a vaccination requirement, you should keep the above regulations in mind.
There is still a great deal to be optimistic about regarding the fight against COVID-19. If you are considering bringing your employees back and would like assistance in developing workplace policies, the attorneys at Dressel/Malikschmitt LLP stand ready to help. Please contact us at 848.202.9323 or visit our website. Please note that all clients face unique legal situations and the information in this article should not be relied upon as legal advice.