Employer Implications in President Trump’s Guidelines: Opening Up America Again

April 17, 2020 Advisory

On April 16, 2020, President Trump published Opening Up America Again Guidelines (Guidelines) that states should follow in determining when shelter-in-place orders can be lifted so that Americans, including—of course—employers and employees, can return to normal business operations. The Guidelines contemplate a three-phase approach for returning to normalcy, with states or regions advancing through each phase based on satisfaction of certain “gating” criteria within two-week periods:

SYMPTOMS

CASES

HOSPITALS

Downward trajectory of influenza-like illnesses (ILI) reported within a 14-day period

AND

Downward trajectory of COVID-19-like syndromic cases reported within a 14-day period

Downward trajectory of documented cases within a 14-day period

OR

Downward trajectory of positive tests as a percent of total tests within a 14-day period (flat or increasing volume of tests)

Treat all patients without crisis care

AND

Robust testing program in place for at-risk health care workers, including emerging antibody testing

Upon satisfying these “gating” criteria for two weeks, a state or region can move into Phase One of the reopening process. Advancing to Phase Two requires satisfaction of the “gating” criteria for another two-week period. The same criteria must be satisfied again for a final two-week period for a state or region to move on to Phase Three.

The Guidelines also focus heavily on the responsibilities of employers in the reopening process. First, the Guidelines include expectations targeted specifically at employers during all phases of the reopening plan. Fortunately, many of the employer-specific requirements are measures that many employers—especially those operating in the “essential business” sector under shelter-in-place orders—have already implemented. These requirements are:

(1) Develop and implement appropriate policies, in accordance with federal, state and local regulations and guidance, and informed by industry best practices, regarding:

  • Social distancing and protective equipment
  • Temperature checks
  • Testing, isolating and contact tracing
  • Sanitation
  • Use and disinfection of common and high-traffic areas
  • Business travel

(2) Monitor workforce for indicative symptoms. Do not allow symptomatic people to physically return to work until cleared by a medical provider.

(3) Develop and implement policies and procedures for workforce contact tracing following employee COVID-19 positive test.

Apart from these employer expectations that apply throughout the period of reemergence, the Guidelines identify the following suggestions for employers operating through Phases One, Two and Three:

Phase One

For employers conducting business in a Phase One state or region, operations would remain limited in several significant ways. The Guidelines advise such employers to take the following steps:

  • continue to encourage telework wherever possible and feasible with business operations;
  • return employees to work in phases, if possible;
  • maintain closure of all “common areas” where employees are likely to congregate and interact or enforce strict social distancing protocols in common areas;
  • minimize all nonessential travel, and adhere to CDC guidelines regarding isolation following travel; and
  • provide accommodations to personnel who are members of a “vulnerable population,” which the Guidelines define as the “elderly” and those with “serious underlying health conditions, including high blood pressure, chronic lung disease, diabetes, obesity, asthma, and those whose immune system is compromised such as by chemotherapy for cancer and other conditions requiring such therapy.”

Specific types of businesses such as schools, daycares and bars should remain closed during this phase. The Guidelines also direct those in “vulnerable populations” to stay isolated during Phase One.  The Guidelines’ singling out “vulnerable populations” for a delayed return to physical workplaces and the suggestion that employers should bring employees back to work “in phases” may be difficult for employers to honor while navigating anti-discrimination laws that protect older and disabled workers.

Phase Two

For employers conducting business in a Phase Two state or region, the limitations on business would begin to loosen in some meaningful ways, including the resumption of nonessential travel. Furthermore, schools, daycares, restaurants, movie theaters and other venues, as well as bars and gyms, would be allowed to reopen with some limitations. The Guidelines, however, advise employers to maintain the following restrictions throughout Phase Two:

  • encourage telework where possible and feasible with business operations;
  • close “common areas” where employees are likely to congregate and interact or enforce moderate social distancing protocols in common areas; and
  • provide accommodations to personnel who are members of a “vulnerable population.”

Phase Three

Finally, employers operating in a state or region that has advanced to Phase Three would be permitted to resume “unrestricted staffing” of worksites. Furthermore, employers in the health care industry would be permitted to start allowing visitors to interact with residents living in senior care facilities and with hospital patients under requirements to ensure diligence to maintain hygiene. 

It is unclear whether states and counties across the nation will adhere uniformly to the Guidelines. Whether following these Guidelines or some other roadmap for reemergence to normal business operations, employers should be careful to observe nondiscrimination principles to avoid adverse impacts on protected classes of employees that may result from the process of bringing employees back to work. For example, if a business implements a return-to-work in “phases” as the Guidelines suggest for employers operating in Phase One, such a business should be careful to select those who return first in an unbiased manner to avoid discrimination claims. Likewise, while the Guidelines strongly suggest accommodations for “vulnerable populations,” including the “elderly,” employers should be careful to avoid paternalistic practices that create involuntary, adverse employment consequences for age-protected workers or workers with disabilities. 

Armstrong Teasdale’s Employment and Labor attorneys have worked closely with businesses throughout the COVID-19 pandemic to help them navigate this crisis in a manner that encourages positive employee relations and mitigates employee-related risks of exposure. For assistance with preparing policies and procedures suggested by the Guidelines, or navigating through the employer-specific expectations set forth in each Phase identified in the Guidelines, contact any member of the Armstrong Teasdale Employment and Labor practice, or your regular trusted AT contact. For additional information, visit Armstrong Teasdale’s COVID-19 Resource Center.

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