Return To Work Virtual Toolkit Part 2 – Preparing Your Workplace: How to Navigate Safety Mandates and Recommendations
Starting with social distancing protocol, I think we’ve got a poll. We’ve got a question. Yeah, here we go. Let’s poll the audience. Have you developed a plan to maximize social distancing in your workplace for when workers return? Please answer one of these, one of these answers. It will show up on the, on your screen and then we’ll get started. Michelle?
You ready to join us?
Absolutely. I want to see how many people have a written plan, how many people, okay. The results are in. 31%, yes, we have a written plan. 51%, we have outlined general guidelines, but do not have a detailed plan. And 18%, we do not yet have a plan. Well, you are all here for a very good reason, which is we’re going to walk you through what your plan should look like today. Even if you do have a detailed plan, we’re recommending that you revisit it every so often as CDC guidelines continue to be updated every few weeks. So, we should be staying up to date with the latest, and we’ll walk you through that today. So, what are social distancing protocols? As a broad stroke, social distancing protocols are going to cover everything we’re going to talk about today, from physical distancing to PPE to cleaning, and also, of course potentially symptom and temperature checks. For the first piece of this today, we’re going to talk about physical distancing. So, CDC recommends, I think we’re all very familiar with at this point, staying six feet away, about two arm’s length from other people. Generally speaking, we shouldn’t be gathering in groups and we should be staying out of crowded places and avoiding mass gatherings. So, of course, workplaces are perfectly suited for these social distancing recommendations, right? So, you know, I think we’re all going to have to make some adjustments, some heftier than others, in order to really stick to these social distancing guidelines and keep our workplaces healthy and safe for the period of time. Luckily, you know, not only do we now have a good amount of specific guidance from CDC on how to effectuate this in the workplace, we also have many states now and local orders that give guidelines. For example, in California, not only guidelines for California businesses, but specific to the industry. So, we’re looking to that as well for specific guidelines. Next slide.
So, let’s talk a little bit about what your plan should look like. And this is, this plan, generally, we’re talking broad strokes, but of course, it’s going to vary not only by industry, but also by your workplace setting and by your workplace culture. So, you know, if you have a workplace where your employees are easily able to work remotely and have been doing so effectively from day one of COVID, even once the social distancing protocols are loosened, you may want to have your employees continue to work remotely, or at least in part. For other types of settings where, perhaps in retail, where your customer facing and you need to physically be there, we may need to implement other measures. So in terms of implementation mechanism, the key here, once we have our plan in place, is going to be training right, because no matter how great our plan is, if we have employees go out on day one and they don’t know the plan, they haven’t been trained in how to comply, we’re going to have a lot of, of slip ups. So, as a best practice, if you can, we recommend that you implement your training in advance of returning people to the physical workplace. That might include virtual Zoom trainings like this. That would be compensable time for employees. Or if that’s not possible or feasible for your workforce to schedule in advance before you have everybody returns, some limited training sessions where you can maintain a physical distance while training employees in the protocol. You may have two separate plans for training. One for the general population and an enhanced training for managers, which would also cover how to handle certain situations, which we’ll talk about a little bit later. So, in terms of the physical distancing protocols, some things you may want to consider are physical barriers. So, for many of our clients and businesses, generally, they’ve gone in the latest years to kind of an open space concept. Unfortunately, in this COVID environment this is not conducive to social distancing. So, for a temporary barrier, that could be a good idea for that type of environment, temporary cubicles. And in environments where you have employees interfacing with customers in a close proximity, so for example, cashiers, you may want to consider plexiglass barriers. We also want to consider floor and wall markers to service as reminders for social and physical distancing. So that might include anywhere that you have a line, having physical floor markers on the floor to show people where to stand to maintain that six-foot distance. And wall signs as well. We’ll talk about signs a little bit later, but generally speaking, signs on the walls that indicate where you have, perhaps, a maximum capacity. So, if we’re limiting common areas, if we’re limiting areas like elevator space, and many of your buildings may do this already, you can speak with your buildings to understand. Also, if you’re in a shared space, how the facility is going to be handling the social distancing protocols as well and incorporate that into your training.
You bring up a good point about how there’s been this trend towards open space, even shared space, a lot of office environments doing hoteling or hot seating. Obviously, all of this either puts a pause or a reversal of that. What do you think, should employers be thinking 6 months, 12 months? How long should they be thinking when they’re thinking about making these physical changes in the workplace?
Great question, Mike. I think this is really going to depend on the forth coming guidance right now. We don’t know, in terms of a timeline, how long we’re going to have to implement these types of measures. For now, I would, as a general rule, you know, California, for example, has indicated that they think that we may be under our stay home order for the next 3 months in some form or fashion, with gradual loosening over the next course of three months. And I think it’s going to depend, as well, on location, because different states have different situations. So, one state may have, you know, fewer cases and be able to loosen the guidelines sooner, whereas another state may have to keep them in place for longer. So, the key here is really going to be to keep, keep focus on the local guidance and on and watch as that develops. I think when they’re talking about, ultimately, things like vaccines and so on, we’re talking about a longer timeframe here, but the goal is always to, with these with these stay home orders, to really keep the capacity of the hospitals down. So, we’re going to see gradual loosening over time, even before there may be a vaccine in order to allow for employers to continue to loosen these guidelines. But, you know, as we’ve discussed many times, I think the new normal, in many cases, we maybe going to a bit more of a hygienic workforce, right? And with things like hoteling or shared workspaces, the key here is going to be making sure that we sanitize that space if people are sharing spaces. Particularly for shared devices like telephones, CDC is recommending against shared devices like that, and enhance cleaning, which Stephania will cover a little bit later. Additional measures you might implement, in terms of physical distancing, is staggered schedules. So, this could look like having your current workforce continue to work remotely for a period of time and, perhaps, only come in a couple days a week and stagger those days across your workforce so you have fewer people overall in the workplace. Or, have people come in a little bit earlier or a little bit later and, again, that way, you, you limit the total number of people in the workspace at any given time. You may also want to consider, to the extend you don’t already, scheduling breaks so we don’t have a rush of all of our employees trying to get into the breakroom right at noon. And continued virtual meetings. So even if we’re having some or all of our workforce return to the physical state, group meetings should still be limited for this time. We have a bullet here on enforcement mechanisms because, I think in many cases, employees are going to simply forget, you know. We’re going to train them, they’re going to have great training, we’re going have great policies and then they’re going to get into their workspace and go on autopilot and walk to the back in the wrong direction, right? And speaking of directions, in many cases where we have pathways that are less than six feet of distance, we may want to consider including directional arrows so that we don’t have people passing each other a lot of the hallway at an unsafe distance. So, if we have inadvertent slip ups, we, of course, want to remind our employees to comply. We don’t have to bring down the hammer every time that they accidentally forget. We do want to show our employees a little bit of grace here. Ford, for example, is actually testing out wristwatches that will buzz every time someone gets within six feet of someone else. So that, that’s an interesting innovation. Next slide.
So, we’re not going to delve too into detail today on litigation pitfall, that’s going to come later in session 6. But as you’re developing your policies, we do want to highlight some of the key considerations so that you don’t fall into the pitfalls. So, couple of things, if you’re considering limiting your common areas, limiting deliveries to the building, you know, Postmates or other delivery drivers, or changing people’s schedules. We also want to keep in mind our wage and hour obligations. So, meal and rest breaks, in many states, are required for nonexempt employees. Make sure that if we are closing off a break room, for example, that we’re not sending a long message to employees that they shouldn’t be taking break, they absolutely should be. In addition, many employers are considering limiting the number of ingress and egress times that employees can come in and out of the building because of the physical limitations of the space itself. Perhaps you have only one door that you can come in and out of, or the elevator itself is going to be limited, but we do want to be mindful of our obligations to the extent that some states require breaks, and then we have to permit employees to come and go if they want to during those breaks. The key here is going to be making sure that we space out the breaks, so, again, not everybody is trying to take their break at the same time. Posting requirements. So, many employers post their required posters in break room. So again, if you’re closing off your break room, you may want to consider moving those posters out into the common areas that people will be able to view those posters. And in California, specifically, because we are our own special state out here, we have a suitable seating requirement. Literally have to provide people with chairs, and so if you’re removing chairs from things like break rooms and conference rooms, just keep in mind that we do need to maintain some amount of seating for our employees. Likewise, if you’re calling only a portion of your work force to the, to the work site, make sure that, just like as we would with any policy, you want to make sure that you have legitimate business reasons for why you’ve identified certain people to come in. Many companies in the initial stage are, in fact, giving employees the, the option, if they feel comfortable, to come in for some workplaces. That may, that may work for you. Keep in mind that if you make an exception for one person, that could set a precedent. So, if we say all of our salespeople need to come into the physical workspace and one person says, I don’t want to do it and you say, okay, you don’t have to. The next person who comes in is going to expect to be treated similarly, right. So, we’ll want to keep that in mind as we’re making exceptions that we’re setting precedents. And, we should expect that some of our employees are going to have home accommodation requests, right, because we understand now this virus is highly contagious, and there are some heightened risk factors for contracting the virus or complications from the virus. So, in some cases employees may have been recommended to self-quarantine or not come into the physical workspace. We’ll want to treat those requests like we do any reasonable accommodation request under the ADA for your local state requirement and engage in the interactive process. Next slide.
So, Michelle, what do we, what do we do if an employee just flat out refuses to comply, say with social distancing? You know, think, think of the notorious close talker Seinfeld, someone like that. What do we do?
Yeah, well, so I think that’s a great example. And I think the question with the close talker is going to be, you know, is this person someone who just inadvertently is violating the rule versus are they affirmatively telling you I reject your policy, I’m not going to comply. I think we want to give people some grace on the front end for the inadvertent long compliance with some gentle reminders, but if we do have an employee in the workplace, you flat out refuses to comply with our policies, we’re going to have to have a plan in place. And in some cases, that may involve discipline, just like with any of our policies, right? Keep in mind again, these policies are key to keeping our employees, and in many cases, customers and vendors healthy and safe. And so, this is not just a request. We are implementing these for people’s safety, and if people fail to comply with our safety policies, we have to take action. We can’t have our employees in the workspace if they’re going to refuse to do what we’re asking them to do to keep everyone safe. There, there are, of course, going to be potential exceptions that we’ll have to make for medical reasons or religious reasons. And we’ll talk a little bit about that in the PPE section as well. So, in that case, may need to explore some reasonable accommodations. It might not look like letting one person into the workspace without a mask. We may have to make different changes for that person. But absent a protected reason for non-compliance, we may have to proceed with our disciplinary process.
How about you, Josh? You’ve got different, very different work environments within, within the company. You’ve got the factory setting. You’ve got the office setting. What sort of policies have you put in place?
Very good. Thanks, Mike. And thank you for having me join today. Really useful and I’ll try to learn a lot more to take back and implement within Ardagh. So, we have, I have 21 facilities responsible for in the US spread through 13 states, plus three offices. So, it’s exactly that setting. We’re fortunate we’re essential work, so our factories in production has been continual throughout the process, and we’ve had to implement the various state rules and local rules that Michelle referred to, whether it be first on face mask in some states, which would require face mask. But there are exceptions that are blanket exceptions. If someone has a medical reason for not wanting to wear a face mask, then we as the employer cannot request even verification of what that request is, but we would implement, in that instance, we implement a way for just a release saying that the employee acknowledges that they are not going to wear face masks because of a medical condition. So, we have that on file. But it is, certainly, in my experience, the best thing we can do is understand that this is a fluid situation. We need to maintain and be flexible. And as Michelle was also referring to whether it be the office re openings, which we’re are going to be gradual, probably take two steps forward, one step back, and we need to have consistent policies and implement them consistently. Because, I think, that the end of the day that’s where likely potential litigations could also arise.
Before we begin the sanitation protocol part of your presentation, let’s, we’re going to two questions to poll the audience, okay? First is are you taking, are you taking on the heightened sanitation duties within the organization or are you utilizing a third party, okay? And the answers are we’re utilizing, we’re doing it in house, we’re utilizing a third party, or C, we’re doing a little bit of both. So, if you could answer that question for us and then we have another polling question. For those utilizing a third party either partially or completely, have you communicated with that service to explain the expectations and ask for their cleaning quote protocols to address COVID 19? A is yes. B is we’ve not yet done that. So, if you could answer that as well, that’ll help us.
All right, Stephania, do you want to read the results?
Sure. So, for the first question, are you taking on the heightened sanitization duties within the organization or utilizing thirds party. About 17% of you are doing it in house. 27% of you are using a third-party service, and 56% of you are doing a little bit of both. As to the second question, for those utilizing a third party partially or completely, have you communicated with your cleaning service to explain your expectations and ask for their cleaning protocols to address COVID 19? 54% of you have communicated the expectations and received the cleaning services protocols. And about 46% of you have had this discussion, have not yet had this discussion, excuse me, with the cleaning service. I think whether or not you’re using, and in house, you’re doing the cleaning services in house or you using a third party vendor, the key here is to make sure that whatever protocols you have in place are communicated clearly and that everyone understands what the expectations are. And we’ll get into the nitty gritty in just a little bit about what you need to do in terms of creating that protocol and properly communicating that protocol.
Stephania, should a, should a protocol be in writing? And just, just how detailed how much into the weeds does the protocol have to get? I mean, we’re talking about the types of cleaning. If you could just, what do you think?
Sure. So, you should partner with your third-party cleaning service if you have one. The goal is not to micromanage your third-party services for whoever is doing the cleaning inhouse, but to keep in mind that ultimately, the burden lies on the employer to keep the workplace safe and comply with those duties under OSHA. So, given the highly contagious nature of COVID 19 and then recent efforts by some states to flip the workers compensation burden of proof, it’s important here to partner with counsel, roll up your sleeves, review the latest guidance on cleaning and ensure that you’re comfortable and have a plan in place that addresses the latest guidance. So, for example, asking whether the cleaning solutions that your third-party service uses are EPA approved as an example of how you would make sure that they’re contemplating those recent guidances. So, before we can fully discuss what it means for an organization to comply with sanitization and cleaning protocols, we need to first understand what those protocols are. The CDC has set forth multiple cleaning guidelines for the workplace including everyday steps, steps to take into account when someone is sick, and even considerations from employers. So, for example, here it recommends disinfecting on a daily basis, hard, non-porous surfaces that are touched by multiple, multiple individuals a day. So, we’re talking about tables, doorknobs, light switches, countertops, sort of, high touch surfaces within the workplace. OSHA, the federal agency which enforces workplace health and safety laws, recommends basic infection prevention measures, such as maintaining your regular housekeeping practices and routine cleaning and disinfecting of surfaces. OSHA goes a step further than the CDC and even recommends specific cleaning solution approved by the Environmental Protection Agency or the EPA. Now the EPA has a two-step process by which companies can register their products with the EPA to claim use against what’s called certain emerging viral pathogens not identified on the product label. Briefly, pathogens are anything that can cause a disease, like an infectious agent. Emerging viral pathogens are defined as pathogens that are newly appearing in a population or pathogens that previously existed but are rapidly increasing in incidence. The COVID 19 virus is considered an emerging viral pathogen. Employers can go directly to the EPA website for a list of disinfectants that are approved for being effective against emerging viral pathogens, including the COVID 19 virus. And the list contains over 400 products. Things ranging from household names like Clorox to an item called Volcano, where the active ingredient is citric acid. In addition to the CDC and OSHA, states and localities have also implemented cleaning guidelines for specific industries. So, when you’re considering what new protocols to undertake, you should consult with those as well. Next slide, please.
Josh, what kind of sanitation protocols have you developed, have you, have you guys implemented or considered for the office space?
So, for office space, we’ve had routine cleaning all the time and then enhanced cleaning. One of our buildings, one of the office towers in Chicago by the airport, there were a few cases that were positive earlier in the year, not on our floor or in our office, but at the time those happened, then we would implement enhanced cleaning at that time. So I think it’s that, it’s a continual process of one more routine, probably daily cleaning, that you, yourself as the employer are implementing using your own, whether it be an outside vendor or not, and the enhanced cleaning likely on a more periodic basis, maybe weekly, etcetera. And then, of course, if you have any cases that you’re going to bring it in again and do further cleaning.
How about, how about in the factory? How does it differ?
Factory is just more routine. It occurs all the time. There’s, we have the cleaning devices out and we have, basically, cleaning emergency packages that we’ve implemented to have. We will still also use outside vendors who are experts in the area to do a more robust cleaning on either a typical periodic period or in the event if we have had a COVID positive case.
Great, thank you. Thank you. Hey, before we move on to the personal protection equipment the PPE protocols, not to be confused with the PPP loans, we’ve got a couple of polling questions for the audience. We can move onto that next slide.
First, does your state require the use of face coverings when you go out in place, when you go out in the public? Is that required by state law? The next question is, will you, your organization, require the use of face coverings in the workplace? You could answer both of those for us.
All right, I’ll jump to that, I think Stephania had a connection issue, but does your state require the use of face coverings when going out in public? 68% of you said yeah, 27% said no, and 5% said not sure. And the second question, will you require the use of face coverings in the workplace? 45% said they say yes. 25% say only when the employee is coming within close range of someone else. 5% say no and 25% say not sure. So, Stephania, I’ll throw it back to you, then, for the PPE section.
Sorry about that technical difficulty.
So, I think one of things we need to do is to first understand what the guidelines are with respect to when we’re trying to implement any new protocols with respect to PPE. So, there are different state and local regulations. You should check with your governor’s office or your state health department office. OSHA has recently issued guidance on returning to the workplace and has protocols in place as to what types of jobs require PPE. The CDC is, you know, advises the use of cloth coverings in public settings, where other social distancing measures are difficult to maintain to slow the spread of the virus. And the White House has actually issued in its guidance, strong encouragement to use face coverings when in public, and especially when using public transportation. Next slide, please.
So, one of the first items you want to tackle when talking about PPE is whether or not the employer is required to pay for the PPE. So, I think it depends. If your state or, if you have state or local regulations that require employers to pay for the PPE, then, you know, t hat’s an easier question. You’ll have to actually pay for it. So, like, in L. A county and in Miami-Dade County, recent regulations with respect to reopening the state has actually required employees to either provide the PPE or to reimburse the employee for the cost of the PPP. So, there you have no choice, really. But, in an instance where of the state just merely recommends that employers provide the PPE, you can perhaps ask employees to make something that they have using at home. But bear in mind that hat comes with its own set of risks. Employees may not fully comply with that policy. OSHA has a general duty clause, which essentially states that employers have to implement practices in place to prevent keeping those employees, to prevent those employees from being impacted from any potential hazards in the workplace. The recent guidance in the work, in the workplace issued by, its usually issued by OSHA, on the COVID 19 prices has provided different guidelines on what kinds of PPE should be provided to employees and identifies four different risk categories from low exposure to very high exposure. So, what’s considered low exposure? Low exposure is a workplace where employees do not come in contact with the public. And in that instance, OSHA actually recommends that additional PPE is not required. But in instances where there is very high exposure, ie., you know, in a healthcare setting or in a situation where there’s a lot of, like a retail facing company where there’s a lot of interaction with the public, OSHA recommends combining several PPE such as goggles, masks, gloves, depending on the nature of your workforce. So, what you, ultimately, what you ultimately provide in terms of PPE, I think, depends on what your business looks like. So, if you have mostly office space where individuals come into their office and they’re not interacting with a lot of people, perhaps you don’t need as much PPE or you may not need PPE at all. But if you’re in a retail facing company, where, for instance, your employees come in contact with the public on a frequent basis, you may want to consider providing something like masks, or if you’re in a factory line situation where it’s one person after the other, you may want to provide gloves as well. Different states have different regulations, so, for instance, in Massachusetts there is a specific guidance for the manufacturing industry. And there the, the state has actually gone ahead and said that manufacturing businesses have to provide cut resistant gloves to all their employees. So that’s an example of where you have, where it’s important to actually consult with both the state and local guidelines. I see Mike over there is wearing appropriately, his face covering. All of this, I think, Michelle, all this Michelle mentioned earlier, it ties in neatly with training. You can have all of these PPE protocols, but they won’t mean anything if you don’t train your managers and you don’t train your employees on the policy. So something you should consider is perhaps a day or two, or a week or two, depending on, you know, your company’s availability to do this is to have a virtual training on the policy, issue the policy in advance, have in place the policy and then have a training prior to them coming to the to the workplace on the first day. You should also train your managers so that they’re carefully considering, not only the policy, but what it means to enforce the policy. What happens when an employee of objects or if there are issues of if your employees are asking the questions as to like, for example, why do I have to wear this? And make sure that as an organization, you have come together to have those kinds of thoughtful conversations, so you’re prepared when you, when you receive those, those questions from your employees.
Stephania, if I may, I think you hit on the head. And I think, as I’ve thought about it and thought about with the team and my colleagues, it’s really looking at both the industry, the specific job, the regulators perspective, and then also on top of that, what is going to be the access? Is there scarcity of the type of PPE that you’d actually be looking for. Of course, what we saw early on with COVID and not. So, if you’re talking about and N95s and KN95s and the takeaway is, I think, for anyone implementing a policy, is making sure that you’re going to be able to live with that policy because things, again, going back to its fluid, it’s flexible, etcetera.
I think you’re right to mention that flexibility because if you recall early on in this public health crisis, the CDC actually cautioned against use of the masks, stating that people would be encouraged to touch their face too frequently. Fast forward, now there have been recent studies that show that people who are asymptomatic can actually spread the virus via coughing, sneezing or just talking regularly. So now the CDC has actually taken the opposite, opposite approach and said, you should wear a mask. So, I think organizations, you know, should follow the CDC’s, you know, sort of, example here and giving themselves some flexibility to move as the science evolves and as we learn more about this virus.
I’ve got, I’ve got two questions about that review. I just came here. Can you hear me clearly?
Yes, I can.
So, and this is, for any one of the three of you. First, what do we do if an employee just flat out refuses to wear a mask? And then, secondly, what do we do in the event that the, the mask becomes an expression of, say, it becomes a political statement? How do we deal with that?
Well, I think the first thing you have to you have to ask is, why is the employee refusing to wear the mask? Now, there are some certain exceptions that are protected. So if the employee says it’s because of a medical condition, then I think as an employer you would have to follow your reasonable accommodation policy and engage in the interactive process with that employee to reach a solution, whether it’s leave, or maybe it’s an exception to that individual not wearing a mask in the workplace. Same thing goes for if the employee says it’s for a religious reason that I can’t wear this mask, you would engage in that conversation. Now, if it’s an employee who just says, I don’t feel like wearing the mask because, you know what, it’s awkward. Well, you have to treat this as you would any other company policy, it’s required. And you have to impress upon your employees and also your managers for enforcing this policy that, listen, if you don’t wear the mask, you don’t work. And you have to implement that policy consistently and make sure that there are no exceptions.
That’s great. What about, what about the political expression on the mask?
So, being from California, and we have our extra laws out here, I’ll take that one. You know, out here in California, there is a certain protection for political expression. So, if somebody goes to a political rally on their off time, and you, as the manager, are against that particular, you know, candidate, we can’t take adverse action against that employee. But that right is limited, right? And the whole point of facemasks in general and, fun fact, cloth face coverings are actually technically not considered to be PPE because they don’t protect the wearer, they protect everyone else from you. So, if an employee’s refusing to wear a cloth face covering because, perhaps, they feel like they’re not in a vulnerable population, they don’t need to wear it for themselves. That’s missing the point here. And really, again, it all comes back to keeping our workplace safe for everyone, whether it’s our employees, our customers, our vendors. And if we have a requirement to wear a face covering for that purpose for this limited period of time, it’s not going to be an option to simply say, well, I find this topic to be politically charged. In this day and age, everything is politically charged. So, if you let employees take a political issue with each and every one of our workplace policies that are not apolitical and simply address that keeping everybody safe, we’re going to have a Pandora’s box, I think. So, we really have to take a firm approach here, but to Stephania’s point, there may be some accommodation exceptions from time to time. But as a general rule, we can’t let people simply abscond from our policies.
Any rules, Josh, at the company and what can or can’t be on homemade masks?
I don’t think we went to that level of detail, but my thought would be it would be the same as an any dress policy, at least on the mask. So, that would be my analogy. You know, no offensive language and such would not be tolerated. And in going back to also to the first part Stephania mentioned, and when, if you have that person who is refusing, I think it’s so critical that it starts with tone at the top and that everyone is speaking the same thing. That’s about health and safety, first. We’re all in this together, and the only way we get through this with the least amount of damages is if everyone does their part. And so that starts, again, tone of the top of the messaging, the consistency that the rules need to be followed from the manager on down. And, hopefully, that will go a long way to eradicating anyone who’s a bad apple.
Stephania. Thanks, Josh. Stephania, we got a question from our audience, and that is, in a state where masks are required by state order, does that mean the employer doesn’t need to provide the mask? And the employee already should be, should have their own mask and should just bring it to work?
Not necessarily. So, I think it depends on the state, because if you have a state where the guidance explicitly states that the employers are to provide the PPE, then the employer has to provide it, or at least reimbursed for it. And then you have states like California and Illinois that haven in place specific employee reimbursement laws that basically say, if it’s necessary for the functioning of the business, then the employer has to provide reimbursement. So, if you, as a workplace, are requiring that mask, then I would say that’s a business necessity requiring reimbursement.
Well, thank, thank you. I think we’ll move on to the next section. And this is something that’s been a subject of a lot of debate, no one clear path, and that is screening protocols. Before, before we begin with the discussion, let’s take a poll of the audience. Will you be taking employees temperatures before each employee enters the workplace? If you could answer one of these three. Michelle and I have a side bet on this. Okay, looks like Michelle has been frozen and left us. But let me, let me take a look at the results here. We’ve got almost half of you, 41%, are undecided, with a split of 39% self-screening and 20% taking temperature at the door. So, let’s start with the symptoms for COVID 19. Take a look at the, if we could at the next screen, the list. Now, this list this is not all inclusive, but you’ve got cough, shortness of breath, difficulty breathing, fever, chills, muscle pain, sore throat, new loss of taste or smell. You see, fevers in there as one of them, but it’s, temperature screening. is something that employers are looking at more and more and more. If you’re, if you’re looking at our resource center back in the, I guess you would call it the early days, just months ago. First, second week of March and leading right up to in the EOC first issued, it’s, it’s guidance. Yes, temperature taking is a medical exam but it’s also permissible during this COVID crisis. We met on this, our team who was handling COVID issues on a, you know, minute by minute on day in, day out basis, debated it and, and we came to the conclusion that it was not, it would not be a best practice. It wasn’t a recommended practice because someone could have a fever and not have COVID, someone could have COVID and not have a fever. And when you when you consider that that, that it’s really not indicative or significantly indicative of anything, together with the employment risks that we can talk about, we recommended no, no temperature taking. Now, that was, as I said, back in the early days. When you look at it today, in the airports, we’re going to have temperature taking when you go through the screening process. When you go in a lot of major hotels, there is going to be the thermo scanner. When you go in a lot of major commercial buildings there will be thermal scanners. And you bet a number of employers are taking temperatures. And so, it raises the question, and that is, you know, the old question, if everyone else is doing it, should we be doing it too? And look, and with that, you asked that question back and forth, Michelle, and welcome back. Would you like to jump in?
Thank you. Sorry about that. Yes, we were just talking pre webinar about how during the webinar is when all of our internet always have issues. So, yeah, the big question is, you know, we, as the employer, should we be taking everybody’s temperature upon arrival? Should we be asking everybody the 10 questions we have to ask about symptoms? And I think, so, first of all, some states now do actually require this of employers. So, in those states, the decision has been made for us. We have to comply with the order, right, if we’re returning people to the workplace at this time. Absent a requirement, we still have that flexibility and that auction. Certainly, the best practice, all employers should be implementing a self-grading policy telling employees, here’s our policy. Screen yourself at home before you come to the workplace. Don’t even get in the car if you have any of these symptoms. If you have any of these symptoms, call out sick.
Quick question, quick question for you on that Michelle. This is also one from one of our participants, one of our audience members and that is, can we, can we post that employees, if they come to work and they punch in, then that that’s an affirmative that they have done all this, they’ve checked all this. Checked the boxes. No temperature, no aches, no pains, no sore throat, nothing like that.
Right. You know, I think that’s a happy medium approach between the self-screening and the employer screening. And in some states about very well satisfy any obligation you have. In certain states there are affirmative requirements that we have somebody asking employees before they start their shift, do you have any of these symptoms? Or alternatively, having some sort of questionnaire that gets filled out. But I think, you know, short of that it’s a great practice to pair your self screening obligation with some sort of affirmative, you know, if your clocking in for the day, you are affirmatively representing that you do not have any of these symptoms. So, I think that’s a great approach in many cases. Next slide.
How about Josh at Ardagh? Are you using any of these screening measures? And again, are they different in the factory setting than they are in the officer setting?
We are. We’ve been testing temperature taking, probably starting at least six weeks ago, using no touch is the critical part of it. We, I think, will be going to thermal temperature taking. And we also, as our offices start to reopen, Indianapolis office hopefully next week, after the holiday, there will be no touch temperature taking before people come in or once they come in. So, we’ll come around and do it. But with the plan to implement, certainly, thermal temperature taking hopefully before anyone actually enters the office setting.
Absolutely. And that’s a great approach, I think, for employers, that do want to take temperatures but have, for example, of factory setting where you might have hundreds of people that you need to monitor before the start of the work day, rather than having folks line up. And so, you know, we talked a little bit about some, some states have specific requirements, not at all an exhaustive list, but Colorado, Connecticut and New Hampshire are some examples of those states that will actually require employers to do some sort of screening on employees before the start of the workday. Keep in mind that a lot of these requirements have been implemented by your state or local health focused organization, not employees focused organization. And so, we also, again, want to keep in mind some of the pitfalls. So, we don’t, so, as we’re implementing these policies, we’re not walking into a class action lawsuit, right? So, for example, keeping in mind that EOC has said yes, you can take temperatures, that does not violate the ADA. It is a medical exam, so we need to keep the information confidential. Make sure also, if we’re doing any sort of COVID 19 testing or antibody testing, it is, we are, again, the EOC said we can do that, but it’s the employers obligation to make sure the tests are accurate and reliable, which is a giant burden for the vast majority of them employers that perhaps are not, you know, medical development facilities. So, you know, take that for what you will. For example, the antibody tests are largely, it’s questionable about how accurate they are today. Also, you know, I think a big piece of, as you’re developing your plan, is really ask yourself at each step, why are we implementing this piece? If we’re going to be implementing COVID testing, keeping in mind the strengths of it as well as the limitations. The strength of COVID 19 testing, you’ll know if you have someone who’s positive today. Of course, the setback is tomorrow, that person can go to a concert with 10,000 of their closest friends and they could contract it tomorrow and we wouldn’t know. Same with antibody testing, the question is, if we’re going to be testing folks for antibodies, I think the general thought is, well maybe those employees with antibodies who have had the virus and are now healthy again are less prone to getting it again. The science really isn’t there yet. We don’t know what the antibodies, having the antibodies may do in terms of less vulnerability going forward. Even if it does mean that the person can’t contract the virus again, we also want to keep in mind, what does this mean in terms of potential disparate impact to our workforce at large? If we’re going to be implementing a policy, for example, that only people with antibodies can come back to work, does that disproportionately affect our, our more vulnerable populations, who have more carefully quarantined and haven’t gotten the virus? So, we want to keep our eye on that ball as well. Next slide.
So, when you’re discussing whether to do self-reporting or on-site or both, keep in mind a couple of additional ways in our pieces, right? So, for non-exempt employees, if we’re making them wait in line for a long period of time to get screened, that’s probably going to be compensable. Certainly, out here in California, where even a few minutes, you know, is not good to miss anymore. So, we’re going to want a track that wait time. Reimbursement. So, if we’re asking employees to take their temperatures at home, some may not have thermometers. And in some states, as Stephania noted earlier, that may incur reimbursement obligations to either pay for or reimbursed for a thermometer device. Show up pay is another big question out here in California. If we had a policy that don’t show up to work if you’re sick and the employee shows up anyway and they report immediately at the screening that they are in fact sick and have symptoms, do we have to show them their reporting time pay? I think this this is an issue that the California DLSE here has not directly addressed yet. Certainly, that person could be subject to disciplinary measures for violating our policy and showing up despite having symptoms. But you may want to err on the side of caution and provide the show up pay, in addition to the discipline that that person may, you know, be subject to. And again keeping in mind privacy, so if we’re having a bunch of our employees line up to get temperature screenings to ask them their symptoms, try to do it in a way that is somewhat private, right, with perhaps another temporary barrier or and certainly a social distance line of six feet between people. The information we are collecting is medical information, so we also want to be mindful of the state that you are operating in, or the states. Some states, like Illinois, have biometric privacy laws that are in place that cover, for example, scans of the facial recognition scans. So, some of the thermal imaging that take people temperatures also collect other data like facial recognition data. So, you’ll want to be mindful of the device that you are purchasing for your workplace and understand what information you’re collecting. If you’re collecting more than you need, see if you can work with your vendor to shut off the features. Similarly, out here in California with a CPPA, again, with privacy concerns, if we’re collecting and storing certain data, it may be subject to additional privacy protocols. Next slide.
Michelle, I was just going to add before you go on, I think that the critical piece in implementing is just looking and only keeping what are you really needing. And to me, I would think, as an employer, all you need to know is whether the person has the temperature of whatever threshold setting, I think it’s 100.4 is what most guidance suggests. And if a person has it above, that’s what you need to know. You’re going to have that record that that person that was sent home, albeit depending upon the other thing I’ve become an expert on recently is temperatures and thermometers, more time than ever thought ever possible. There is an accuracy question about the different instruments you’re utilizing, so you may want, anyone out there developing a policy is going to do, it will likely want to consider a second screen process.
Thank you, Joshua, that is such a great point. Absolutely. That’s exactly right. The devices that we use to screen temperatures maybe more or less accurate and particularly the thermal scans, the kind of cameras in the ceiling that are scanning everyone’s temperature at once may be prone to inaccuracy. It’s a great way to capture a large crowd initially, but it’s a great idea. Joshua, as you mentioned to have a second screening. And, you know, some companies, like, for example, WIN, that have published their social distancing protocols, are implementing just that. The thermal scan and then if somebody comes up hot, then they get a second screen with a more accurate thermometer.
So, so we need this, you know, so we’re going to collect this data. Employee, you know, medical, medical information, employee’s temperatures. How long do we keep it? How long do we recommend employers keep it?
Well, the first question is, are we going to even write down the data? And I think, you know, that’s going to be up to the employer in many cases unless your local order requiring you to record the data isn’t enough simply to have the screen at the front door if you’re going to do that. And if somebody is, you know, under 100 they come in and if they’re 100.4 or higher, you send them home, but you don’t write it down. That might be one option, but if you are recording temperature or symptoms at first, we’ll want to record it and keep it in a private space, because again, I can’t reiterate enough, it is a medical examination, medical data. And then, in terms of retention, your state may have specific guidelines on retention of medical information as well as privacy information, and so you’ll want to consult specifically with the guidelines for your state. I think the general rule, from a from a potential discrimination litigation standpoint, you’ll want to retain the records for as long as the practical limitations is in your state for such litigation.
I was going to also add that with respect to retention, some states, we’ve, I’ve seen guidance where it’s required where an employee has actually indicated, where it’s indicated the employee has a temperature, that they have to contact the state Department of Health to send that information, as to enhance the state’s efforts and sort of doing contact tracing with the virus. So, just to follow up again, you need to make sure you’re checking your local guidance and regulations.
Absolutely. That’s a great point, Stephania. Thank you. And of course, when any employee is recording to you that they have COVID 19 symptoms, not only should they refrain from coming in or be sent home immediately, but you should also be recommending to them that they seek medical attention. And then if they do go to their physician and are tested, and if they test positive, the, the hospital or medical facility will also transmit that data to the local health organization for tracking purposes. So, the key here is going to be, really, not only having a policy that requires people to stay home, but in terms of enforcement, ideally, you have a partnered plan of some sort of paid sick leave. So, in many states this is already required, and under some laws now that have come out specifically addressing COVID, it may be required for your workforce. But if you’re in a state or a location that doesn’t require it, you may want to consider providing some amount of paid sick leave so that we encourage employees to, in fact, stay home when they are sick. And keep in mind, too, that for people who come down with symptoms and they are longer term, or they have complications, this could also trigger ADA accommodation obligation. Or employees again, that who report symptoms in the workplace we’ll want to have a protocol in place on how to deal with that’s generally going look likes ending them home immediately for sanitization of services in the area that that person is in. The CDC now recommends that you wait 24 hours before sanitizing the area so that anything in the air can settle first. So, what you’ll want to have done is quarantine off that area, so nobody walks into it and then, ideally, wait as long as possible up to 24 hours before sanitizing. And, of course, also informing any individuals who may have come into prolonged close contact with the person, that they have had contact with someone who potentially has symptoms of COVID 19. Do not disclose the name of the individual who went home sick for their symptoms. Certainly, in many cases the person will figure out who it is, but we don’t, as the employer, want to be sharing that information. The key is to notify those individuals that they’ve had that close contact. In California, that’s defined as within six feet for over 10 minutes. So good rule of thumb. Talk to the employees who you sent home after they’re out of that space that you can talk them about who they may have come into contact with, and then send those individuals home as well. The CDC recommends for most employers, unless you are critical infrastructure employer like a 911 operator or something along those lines that even those who have come into contact with someone with symptoms of COVID 19, where at all possible that those people self-quarantine and work remotely for up to 14 days to make sure that they don’t come down with symptoms of themselves.
Michelle, I see we’re getting close. But if you could just briefly talk about signage and the importance of communication. And then we’ll go on to Q&A, okay?
Absolutely. Yeah. So, to reiterate for all of these policies we’ll want a written policy that has a good amount of detail in it. And in fact, if you’re an employer with multiple locations, you’ll likely have a policy for each location, unless you’re like one of my favorite stores, Target, and all of your layouts are exactly the same. Thank you, Target for that, very helpful. But if you have different workspaces, you’re probably going to need a slightly different plan for each workspace, you know, in terms of direction, directional flow, for example. These policies should get pretty detailed for employees, and I would even recommend attaching that floor plan with the directional flows that employees can get familiar with how they should be walking through the workspace in a safe way. And then in terms of signage, certainly there are requirements required signs that we should be posting based on local order. Some orders even give you samples like Los Angeles county provides a sample sign that you can post outside of your workspace to remind patrons and employees not to come in if you are sick or to maintain a social distance. And in addition to that, we recommend having a plethora of signs throughout the workspace that remind people to comply with your written policy. So, if you have, for example, like a meeting, and you could make fun of me for thing plethora.
Every webinar. It’s like webinar bingo, here we go with plethora. Bing, bing, bing.
We can’t get away from it. So, if you if you have, for example, an office space where people work in private offices, they may not need to wear their face covering in their private office. But as they’re exiting their office to go in the restroom or the copier, they should put their masks on. And it’s a good idea to put a sign on the back of people’s doors to remind them to put their, their face covering on, things like that. Signage to indicate if we have any sort of maximum capacity for common areas. Signage to remind employees if they are responsible for wiping things down, that, that are high touch surfaces like a copier, for example, or a microwave. And we’ll also want to, again, remember, if you have any posted signs and areas that we’re closing off to relocate those signs. In terms of our policy itself, the key is, you know, I think employers that we’ve been working with by and large have their employees’ best interests at heart, have their customers best interests at heart in keeping everyone is safe and healthy as possible. We can’t guarantee safety because this virus is still contagious, and even in New York right now, there are cases where people have been self-quarantining in their apartments for months and they’ve just come down with the virus. And we still don’t really understand exactly how that could happen. So we can’t guarantee blanket safety, but the key with our policy is to really communicate our motivation that safety is paramount and all of our policies are driven by the science, by the CDC recommendations that we may need to modify those policies as additional guidance comes out, or as the guidance allows us to loosen our restrictions. And communicating the why. I think, particularly in this day and age where we live on social media, you know, we see a lot of positive and a lot of negative press for companies and how they’re handling the virus, and it may be as simple as the way that you communicate your policy. Always, as a rule of thumb, even if it’s an internal communication about the policy, expect that is going to end up on Twitter, right, and see it through that lens. You never know what’s going to end up in the public forum, and the key is to really communicate to the public as well as our employees our good motivations in keeping everyone safe.
Well, thank you, Stephania and Michelle and Joshua. We’ve got a, we’ve got a number of questions, we’ve got over 50 questions from the audience. But before, before we start that Michelle and I know you’re going to kick us off, let me just for those in New York, the code for your CLE is BLUE19. Okay? All right, where do we begin? I don’t think we’re going to be able to answer every one of these questions, but let’s take some of them, would you?
Absolutely. Let’s see. These are great questions. And if we don’t get to your questions live today, if you’ve left your name, we will get back to you by email later.
Let me ask you this one, and I’ll throw it onto the panel. Is it, at Ardagh, are the employers required to contact trace if an employee reports a positive test? And, and, if, if so, what’s, what’s the best way to go about doing that? What’s best practice?
Yeah, I’ll, kick that one off. So, generally speaking, unless there is a state or local order that requires you to report a case, the answer is going to be no. There’s no outward reporting obligations for an employer. You may have an obligation as an employer to inform your, your workforce that they’ve come into contact with that person. And the CDC has different guidelines for somebody simply showing symptoms versus somebody who has a positive test. If somebody has shown symptoms and people have come into contact with them, as mentioned earlier, you know, those people should also be sent home to self-quarantine and monitor. They can work remotely. And if we find out over seven days later that someone had symptoms in the workplace the CDC actually says, you know what, at that point, you don’t have to do any sort of special cleaning. You should still have tell those people who have come into contact with that person to work remotely. But after seven days, regular, regular heightened cleaning is fine.
And I think that also segways to something that I think many of us are thinking about is technical contact tracing and whether or not we’re going to implement either a proximity or geolocation device, whether it be mobile or a tech wearable. And, that certainly brings about a whole host of issues. Data privacy, certainly, maybe the top?
Absolutely. Absolutely. You know, I think there was an article that just came out a couple of days ago, about, even if employees don’t have apps on their phone that in some cases, you know, these smart devices, they’re tracking where you are anyway. And companies have been able to track, for example, people who were at protests and figure out where in the state when they ended up. So, to Joshua’s point there is a significant privacy concern there. And as employees don’t want to have an app installed on their phone. That’s a whole other webinar for a whole other day.
Those trackers, you know, they’re probably at a protest, protesting tracking on the phone.
Exactly. Exactly. So, yeah, you know, something to think about. But I think the old fashioned, oh, you have symptoms, let’s talk to you about who you came into contact with is going to be just fine for now.
So, Josh, you’ve been added throughout the pandemic. You’re an essential business. Many here in the audience, while there are some, there are many who are looking at this is a return to work. What sort of advice can you give your colleagues as to how to address these issues? I know we talked about it once that it’s, it’s a bit humbling because we like to be experts from the get-go. But we’ve all been learning this since March 1st. What would you, what would you say to the audience?
I’d say, I think, the first thing, and I think the way we approached it, not just the lawyers, but everyone at leadership in management work through two filters. The first, keeping people safe as best we could. Health and safety number one. Second, keep our business operating to the extent we could. But that second was always, the first one would be more important, right? So, everything we were looking at was thinking about how does that fit into those two, with health and safety number one? The second thing that I’ve thought about, and it’s just reaffirmed throughout this process and certainly in the environment of not being together is working with whoever that cross functional team is because the input, of not just, it’s going to be the lawyers, could be your HR colleagues. It’s going to be your operations colleagues for the practicality, your EHS colleagues, if you have them, communications and it’s all working together because everybody has a different optic and experience and insight that they have, and it’s really coming together and utilizing the best experience, knowledge and thoughts to drive, I think, those two goals starting at which I think are at the heart of most any business, keeping people safe and hopefully creating revenue.
Great. Great. We, we’ve got some questions from the audience about a waiver. Okay, we’ve got a duty to have a work safe workplace. Can we have our employees sign off, you know, call it a consent or waiver form, when they when they show up. Anyone on that?
Yeah. Sure. Go ahead, Stephania.
I was going to say, I’ll volunteer for that one. So, generally, you can’t have an employee to waive their rights to certain protective statutes, such as, like, worker’s compensation and other related statutes with respect to safety in the workplace. But what you can do, is you can issue an acknowledgement form that says, you know, I, you know, John Smith having have acknowledged that I’ve received this policy that states, you know, the company’s cleaning and sanitization protocols, PPE protocols. I understand what the policy states and I agree to abide by that policy on. And the, you know, keep that in your normal course of record keeping with respect to, you know, the documents that you keep for those employees.
Have you got anything like that, Josh? Is that something that you’re considering?
We did implement, as I mentioned, connection with some PPE. And if someone had the ability to say that they didn’t have to wear a mask covering because of medical condition, then we did ask for an acknowledgement that that individual not, while not telling us what the medical condition was, because I think it was specific to New Jersey where you were prohibited from doing so, we at least have the acknowledgement that they were electing that option of not wearing. So, in that case, yes. Thought, thought about and talked about the other acknowledge, acknowledgements. And I think we will continue to look at those and implement where it makes sense.
I think Michelle and Stephania have it right that an employer is not going to be able to get a, create a waiver, but the acknowledgement, I think, is probably a worthy, a worthy practice. And it may have some, some evidential value later on that at least there was knowledge awareness of some of this.
Hey, Mike. I have a question. What is the New York CLE code for this webinar?
I did that already, didn’t I?
Just one more time, just in case people were, you know, would like the code.
There we go. All right, thank you. BLUE19. Excellent. So, here, how about controlling off promises out of work behavior in order to maintain a safe work environment? What are what are we recommending? What are employers’ limits in being able to do that?
Yeah, I can.
Go ahead, Michelle.
Generally speaking, you know, generally speaking, as much as they want to, especially these days, we should not be trying to control our employees off duty lawful behavior. While, while it may be risky, if lawful, we don’t have the right to control that behavior. You know, there could also be potential NORA issues. We can certainly encourage and provide employees with the knowledge that we have, you know, from our, our very close studies of the CDC guidelines and all of the risk factors and communicate that to employees and explain what may be riskier behavior. But we shouldn’t outright prohibit employees from, from doing what they want to do on their off hours. That could create potential wage and hour issues that we’re controlling their behavior at any given time.
And Michelle, I think that the keyword there was encourage. Because even thinking about benign activity of carpooling and what you’re going to say about that. So, you may want to cover that, encourage people, maybe this is a point in time where we shouldn’t be doing carpooling. But if you are, then give some practical guidance in how do carpool with, in the safest manner. By having Michael drive you with his mask on.
Well, have you got, I’m going to go around the panel one last time, and I think we’re at a time. We’ve got a lot of questions from over 700 attendees here today. So, we’ve got some work to do when we turn off. Michelle, Stephania, Joshua, any parting words?
I part my, I think the last piece that I forgot is probably, end your day with a tasty beverage in a glass or can. Helps get through to the next challenge. But stay safe. Yeah, no, I think, it’s, again, for me, it’s about keeping always constant thought of the health and safety, the consistency that this is going to fluid, it’s going to change, and we’ll get through it as long as we, sort of, stay calm.
I think, I think that’s absolutely right, Joshua. I also just want to take the time to thank my fellow panelists and Mike. This was a very enjoyable experience and I hope that everyone took away, away from it as I did. And I also just want to just emphasize that whatever protocols you’ve taken, you decide to implement with your organization, just take into consideration the specific nature of your organization. And it’s going to be specific to, tied to that in terms of going forward. So, it’s not going to look the same across the board if you have different facilities that need to be taken into account as well.
Yeah, and just to echo my fellow panelists, thank, thank you all for joining us today. I think, you know, you are all ahead of, ahead of the curve if you’re watching this webinar and thinking about the details. The key here is really going to be, you know, proceed with very thoughtful and detailed policies that are, as Stephania said, specific to your workplace. There’s going to be a tendency of some businesses to try to rush back to the normal. And I think rather than rushing back, we want to make sure we do it right. Take that a little bit of extra time to be thoughtful in our policies, training, and then flexible as well as the guidance changes, to Joshua’s point. So, thank you all so much.
Great. Thank you. Thank you, Michelle. Thank you, Stefania. Josh. Thanks.
And thank you. Thank you.
And everyone I’d recommend if you want to understand what Michelle is talking about, you’ve got to tune into three amigos. You’ll understand plethora. I recommend a hearty beverage or two in a bottle or can manufactured by Ardagh. Thanks for joining today. Be on the lookout for an invitation to the next webinar in the series. It’s hosted this Thursday at the same time. You’d also like to, don’t forget to fill out your CLE evaluation forms. You’ll get them along with the slides after this presentation. You’ve got the New York code. It’s BLUE19. We’ll answer the questions that you gave us that we have been unable to answer. Make it a great day. If you’re going outside and then inside, be sure to wear a mask.
Wear that mask. Bye.