Employers Looking Ahead at a New Normal

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As the COVID-19 pandemic continues to suppress business on Main Street, many employers in the state have maintained operations consistent with public health orders by accommodating employees with telework and other work-from-home arrangements and by reducing on site staff to the minimal number necessary to ensure continuation of critical operations.

Surveys taken by the Employers Association of New Jersey (EANJ) of its employer-members have followed the trajectory of the pandemic and shows business and industry in continuing transition, dealing with complex medical and legal issues.

Almost all EANJ’s employer-respondents have maintained operations through the pandemic and most - 63 percent – have not furloughed workers, although four in ten were forced to reduce workers’ hours. Over 70 percent have people working from home and all have taken on site safety precautions consistent with public health advisories, says John Sarno, president of EANJ.

Many now are planning for a re-integration of the workforce and operating at full capacity. But with less than five percent of state residents tested for COVID-19 and with a positivity rate close to 17 in 1,000, employers require a phased-in approach. Indeed, one of the biggest concerns is whether employees will feel confident and safe enough to return to work.

Access to Information

During a pandemic, employers should rely on the latest federal, state and local public health assessments. While public health recommendations may change, employers are expected to make their best efforts to obtain public health advice that is contemporaneous and appropriate for their location, and to make reasonable assessments of conditions in their workplace based on this information. Over 60 percent of employer-respondents say that keeping up with medical and legal information is a big concern.

Keeping the Workplace Safe

Among the standards that employers are required to follow are those issued by the U.S. Occupational Health and Safety Administration (OSHA).  Depending on a risk assessment, employers minimize face-to-face contact, communicate the availability of medical screening or other worker health resources such as telemedicine, implement procedures for safe and proper work, make sure sick workers stay home and establish alternating days or extra shifts that reduce the total number of employees in a facility at a given time.

Additionally, once an employer learns an employee has contracted COVID-19 it should ask the employee how s/he contracted the illness; inquire into the employee's work and out-of-work activities without violating the employee's personal privacy; and examine the employee's work environment for potential viral exposure.

“Many employers are not comfortable with communicating with employees but the OSHA guidance is clear.” says Sarno. Employers must consider any information available at the time when considering whether an illness is work-related, including making reasonable determinations based multiple other incidences of employee infections or whether the employee resides with someone confirmed to have COVID-19.  

Workers’ Compensation Liability

Nearly all employers are required to have workers’ compensation insurance that provides medical treatment, wage replacement, and permanent disability compensation to employees who suffer job-related injuries or illnesses that arising out of and in the course of employment.  Some workers who test positive for COVID-19 after reporting to work would need evidence that their illness was caused at work to make a legitimate insurance claim. But in any case, the claim would be denied if the employee willfully failed to make use of a reasonable and proper personal protective devices furnished by the employer and the employer has clearly made this a requirement of employment and has uniformly enforced this rule.  

Medical Screening

Employers may not select employees for return based upon any considerations of risk for COVID-19. However, employers may use medical screening consistent with the Americans with Disabilities Act (ADA). Such screening would be job-related and consistent with business necessity based on the pandemic. 43 percent of EANJ employer-respondents plan on administering some form COVID-19 screening.  In addition to taking an employee’s temperature, screening may consist of asking an employee the following questions about their health and wellbeing.

Employees who appear to have symptoms upon arrival at work or who become sick during the day should immediately be separated from other employees, customers, and visitors and sent home. If an employee is confirmed to have COVID-19 infection, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace.

Vulnerable Employees

Employees with pre-existing medical conditions such as chronic lung disease or moderate to severe asthma may be unwilling or unable to report back to work. If possible, the employee could continue to work from home.  Accommodations may also include additional or enhanced protective gowns, masks, gloves, or other gear beyond what the employer may generally provide to employees returning to its workplace.  Other additional or enhanced protective measures can also be considered, such as erecting a barrier that provides separation between an employee with a medical condition and coworkers/the public or increasing the space between an employee with a disability and others.

EANJ offers guidance, best practices, policies and much more to employer-members - https://www.eanj.org/return-work-resources-employers