Reopening During COVID-19: General Guidelines for Entrepreneurs in Pennsylvania

By: Mitchell Snyder

As the COVID-19 pandemic continues, many businesses are looking to the future and making plans to reopen and welcome employees back to work. The process of reopening will present both logistical and legal questions as businesses put in place procedures to ensure the safety of their employees. To help in this endeavor, we have compiled a list of precautions to consider including in your business reopening plan.

employee questionnaires 

Employers should consider requiring employees to complete a questionnaire upon returning to work. This questionnaire will seek to determine whether the employee has recently tested positive for COVID-19, recently experienced any COVID-19 symptoms, or believes they have been exposed to someone who has tested positive, and/or has any other reason to believe that they may have been exposed to the virus. This information allows the employer to make an informed decision on whether to allow the individual to return to work while reassuring their employees that their workplace is safe.

The Centers for Diseases Control and Prevention (CDC) recommends focusing questions on the following symptoms:

  • Fever or feeling feverish (chills, sweating)
  • New cough
  • Difficulty breathing
  • Sore throat
  • Muscle aches or body aches
  • Vomiting or diarrhea
  • New loss of taste or smell

Some employers may be concerned about whether they can legally require employees to disclose this kind of medical information. The Americans with Disabilities Act (ADA) allows such questionnaires when the employer reasonably believes that an employee will pose a “direct threat” due to their medical condition. In the case of COVID-19, the Equal Employment Opportunity Commission (EEOC) has determined that currently, COVID-19 qualifies as a “direct threat.”

It is important to note that the ADA requires all medical information collected be maintained confidentially and stored in a separate medical file from the employee’s personnel file. Therefore, prior to implementing a questionnaire, employers should make plans for document collection and storage with their human resources department.

Lastly, questionnaires will only be permissible so long as COVID-19 qualified as a “direct threat.” Therefore, employers should continue to monitor the latest updates from the CDC, local health departments, and the EEOC to determine whether they can continue to require questionnaires.

temperature screening of employees 

Fever is a commonly reported symptom of COVID-19. Therefore, employers may want to conduct touchless temperature checks before allowing employees to enter the workplace. Similar to questionnaires, the ADA allows medical examinations of employees, such as temperature checks, when the medical condition in question qualifies as a “direct threat.”

To avoid the accusation of disparate treatment, employers should subject all employees to the same screening procedures. The Age Discrimination in Employment Act (ADEA) will not permit an employer to treat their employees differently based on age. (For more information on how to ensure compliance with ADEA during COVID-19, please click here.) Additionally, it is highly recommended that the screening be conducted by either a medical professional or a member of human resources in order to ensure confidentiality.

And note: If an employer keeps records of the information collected, those records might qualify as medical records. If this is the case, the employer would be required to retain these records for the duration of each worker’s employment plus 30 years and follow confidentiality requirements.

Lastly, like with questionnaires, employers should monitor the CDC, local health departments, and EEOC to determine whether they may continue to conduct touchless temperature checks.

requiring personal protective equipment (ppe)

Employers should consider providing employees with PPE, such as masks and gloves, for use while in the workplace.  The use of PPE has been proven to dramatically decrease the risk of infection from person to person. CDC Director Dr. Robert R. Redfield has explained, “Cloth face coverings are one of the most powerful weapons we have to slow and stop the spread of the virus.” Currently, in Pennsylvania individuals are required to wear mask when in public when they are unable to maintain a social distance of 6 feet.

It’s important to note that masks are not the only one form of PPE. Employers should consider providing the following PPE for employee use:

  • Masks
  • Face shields
  • Hand sanitizer
  • Gloves
  • Cleaning supplies and disinfectants

The high demand for PPE can make it difficult to find. Luckily, the Pennsylvania Department of Community and Economic Development compiled a list of PPE manufacturers and suppliers located in Pennsylvania to assist with your search.

social distancing in the workplace

Employers should consider ways to increase social distancing in the workplace. The Center for Disease Control (CDC) has published recommended social distancing strategies for businesses. They include:

  • Implementing flexible work hours
  • Increasing physical space between employee’s workstations
  • Increasing physical space between employees and customers
  • Implementing flexible meeting and travel options
  • Replacing in-person meetings with virtual ones
  • Allowing employees to telework if they are able
  • Delivering services remotely via phone, video, or the internet
  • Delivering products through curbside pick-up or delivery

What this looks like will depend greatly on the nature of the employer’s business, its size, and where they are located in the country. Social distancing measures could also include constructing physical barriers between employees, eliminating shared workspace, moving employee’s workspaces to allow for better distancing, and adopting policies limiting usage of shared spaces or utilities such as kitchens or elevators.

The Occupational Safety and Health Administration (OSHA) has provided recommendations for implementing social distancing requirements in the workplace. They include:

  • Marking six-foot distances with floor tape in areas where lines form
  • Posting signage reminding workers, customers, and visitors to maintain at least six feet between one another
  • Posting directional signs in hallways/corridors where the width restricts movement and limits social distancing
  • Move or reposition workstations to create more distance and install plexiglass partitions

Lastly, local governments have adopted differing requirements for social distancing in the workplace. As more becomes known about the transmission of COVID-19, guidelines may change. Therefore, employers should closely monitor state and local orders to ensure compliance.

Business safety signs 

In Pennsylvania you are required to post “COVID-19 Safety Procedures for Businesses” signs near all public entrances and in all employee common areas. These signs should be placed in locations where they are easy to spot. The Pennsylvania Governor’s Office provides printable PDFs of these signs at the following links:

additional recommended precautions

Employers can take additional steps to ensure their workplace is as safe as possible. These can include, but are not limited to:

  • Creating a documented reopening plan available to your employees outlining new procedures
  • Providing hand sanitizer with at least 60% alcohol for employee use in the office
  • Routinely disinfecting frequently touched surfaces
  • Limiting the use of shared office utilities and workspaces
  • Placing signs around the office encouraging social distancing
  • Requiring employees who are sick to stay home
  • Providing educational material about best hygiene practices outlined by the CDC

Some states have released templates for reopening plans outlining what is required in that specific jurisdiction. While Pennsylvania has not yet provided a template, you can consult the New York State reopening plan template when drafting your plan.  (Employers should check to see if a template is now available in Pennsylvania after the publication of this post.)

CDC “RESUMING BUSINESS TOOLKIT”

The CDC has created a toolkit for employers as they begin reopening their businesses. It includes a highly detailed “Restart Readiness Checklist” designed to help make returning to work as safe as possible. You should consult this checklist to ensure your reopening plan is following existing CDC requirements.

consult a lawyer 

Lastly, if you have any questions you should consult a lawyer on your business reopening plan to ensure it is compliant with all federal, state, and local requirements.


Mitch Snyder, at the time of this post, is a rising second-year law student at Penn State Dickinson Law. He graduated from Dickinson College where he studied Economics and Law & Policy. Currently, Mitch is pursuing certificates in both Civil and Criminal Litigation. He is an Associate Editor of the Dickinson Law Review, President of the Criminal Law Society, and a co-coach of the Dickinson College Mock Trial Team. He can be contacted at mps6411@psu.edu.

 

Sources:

CDC Resuming Business Toolkit

CDC Business Reopening FAQ

Pennsylvania Guidance for Businesses

OSHA Reopening Guidelines

NY Reopening Plan Template

https://www.forbes.com/sites/billconerly/2020/05/01/business-guide-to-reopening-thrive-in-the-economic-recovery/#1dc39ed324cd

https://www.forbes.com/sites/forbescommunicationscouncil/2020/07/22/five-keys-to-reopening-small-businesses-after-the-pandemic/#cc3a218295ae

https://www.natlawreview.com/article/temperature-screening-new-guidance-cdc-faqs-and-best-practices

https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act

https://www.eeoc.gov/laws/guidance/enforcement-guidance-disability-related-inquiries-and-medical-examinations-employees

https://www.cdc.gov/coronavirus/2019-ncov/community/general-business-faq.html

https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/businesses-employers.html

https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html

https://www.cdc.gov/niosh/topics/emres/ppe.html

https://s3.amazonaws.com/assets.production.proskauer/uploads/4d739edfa3c20447d9dbf8fbe39ba8f0.pdf

Image Sources:

https://test.abmp.com/sites/abmp.com/files/btwyford/images/open%20sign.jpg

https://cdn.nextgov.com/media/img/upload/2020/05/12/NGtemp20200512/route-fifty-lead-image.jpg

https://www.houstonmethodist.org/-/media/Images/Contenthub/Article-Images/Coronavirus/Hub_CoronavirusSocialDistancing_Social.jpg