It seems that every day a different company is expanding its work from home. Massive companies like Google, Amazon Corporate, and Indeed have already delayed going back to the office until 2021, while others like Facebook, Twitter, Slack, and Zillow have made remote work permanent.
However, many companies are still faced with the decision of whether to return to the office to weigh the benefits of returning against the risk of exposure. As General Counsel, your job is not only to help your company find that balance, but also to ensure that the company is complying with the law. The legal obligations depend on where your company is in which industry. While it can be helpful to check out what other companies are doing across the country, keep in mind that they may have different regulations to follow.
The reopening has to start with a plan. You need to decide in advance how you will ensure the safety of employees, how you will monitor the health of employees, what to do if it is positive, and what options you will offer employees. Let’s go through the key considerations to evaluate before reopening.
Check local, state, and federal regulations
The location of your company affects which guidelines you have implemented as they must comply with government regulations. Certain protocols must be followed regarding the maximum capacity allowed in the office, the wearing of masks and the reporting of cases. There are several resources that you can search for to help you learn the guidelines:
Check the insurance policies
Many insurance companies have started putting in place regulations and requirements for businesses, such as employee or customer consent. You have likely already checked your coverage to see if you were covered for event cancellation or business interruptions. But don’t forget to double-check before opening. Another consideration is employee compensation. If an employee becomes infected with the virus after returning to the office, they may seek cover. Read up on the details of your policy to make sure you know what’s covered and what’s not.
Create a COVID waiver
One of the best ways for companies to manage risk and get back to work is by completely avoiding employee review. It should outline what you are doing to keep workers safe, get consent by asking workers to acknowledge and agree that they know COVID exists and acknowledge that they could make others sick if they did appear sick. It is crucial that employees can review the waiver and decide for themselves whether to return to work. A waiver is not as effective if no options are available. If employees are forced to return to work and sign an agreement, there is a risk of future class action lawsuits.
Think about additional agreements
Beyond a COVID waiver, reopening requires different types of agreements and policies. Some of the most relevant reviews, waivers, and consents include: daily health certificates, distancing guidelines, mobile symptom screening, and contract tracking consents. Create a general policy that includes information such as hygiene best practices, modified work schedules, what to do if an employee experiences symptoms, and how to deal with exposure to the virus. If you want to test employees, informed consent is crucial. States have different requirements for what consent should include, but most include these elements:
- a description of the test
- an explanation of the purpose of the test
- Clarify whether the test was ordered by a doctor or will be carried out by the person themselves
- Information about the reliability of the test results
- Identification of the person (s) with whom the test results can be shared and why
- a general description of the disease or condition being tested
Offer new ways to sign agreements
Part of reopening is determining how to accommodate social distancing in your business. Many processes can no longer run as they did before. A perfect example is the signing of contracts. In order to achieve adequate social distance, pen and paper are no longer an option. Look at the HR contracts and ask yourself:
- Do you have a way to hire employees remotely?
- Is there a self-service option for sales teams to make arrangements with new customers?
- What about the return to work exemptions?
- Do you have a scalable way to capture consent?
Of course you want to get all employees to participate. With daily certifications and symptom screening, you need to make the process as simple and seamless as possible for employees. This means that the friction of pen and paper or even PDFs and eSignatures is avoided. Employees have enough to worry about when they return to work. So you don’t want to add to this by having to find a document to download, sign and upload every day. Consider setting up your agreements as a one-click contract, where employees can take a simple action to execute the agreement.
Save files of acceptance
Not only do you need to have agreements and new methods of recording acceptance, but you also need to make sure you keep records. The insurance may require information about waivers of consent issued to employees. If an employee tries to infect workers’ compensation with the virus on the job, they must prove that the infection occurred on the job. Records of symptom screening and acceptance of waivers will play a major role in this. Not to mention, given the potential for lawsuits from employees or customers, you want to make sure you can keep a record at all times.
The number one priority is to reopen safely. Don’t feel rushed to open again. Take the time now to plan how your business can be legally and securely opened.