Foley & Lardner LLP: How Employers Can Carefully Plan for a Successful Restart

Foley & Lardner LLP Partners John Birmingham Jr. and Jeff Kopp joined Detroit Regional Chamber President and CEO Sandy K. Baruah in a Tele-Town Hall today to discuss employment best practices for restarting and continuing business amid the COVID-19 crisis. The pair took part in answering businesses’ urgent questions on what issues to anticipate moving forward and best practices for navigating the transition.

What to Include in Your Playbook

“Employers really need to have a carefully thought out plan as they return back to work,” advised Birmingham, adding that the governor even specified this.

Having a plan in place means having a guide of actions to take to both prevent issues and also resolve them. First, identify the objectives, said Birmingham. These include:

• Health and safety
• Business operations
• Costs
• Employee morale

Next, identify leaders in your most important areas. These include developing the protocol guidelines, getting equipment ready to communicate with employees, and preparing a communication plan.

“You need to be able to communicate clearly to customers and to employees, and you need to assure them that what you’re doing is appropriate and will keep them safe,” said Birmingham.

Ask questions about what the company will need throughout this transition. Will employees need further training? How do operations need to change in order to keep people safe?

Employers should be willing and able to go outside of their typical playbook to think about everything that needs to be done differently, for the time being, said Birmingham.

“There’s no one size fits all, everyone has different challenges,” said Kopp. “It’s much different for a law firm or accounting firm than it is for a manufacturer.”

Legal Risks

Whether workers’ compensation will apply for employees that may catch COVID-19 in the workplace is top of mind for many employers currently. In Michigan, with the exception of first responders, employees will need to show that they contracted the virus in the workplace, explained Birmingham. That’s why it’s essential for employers to do everything they can to protect employees’ health and safety.

“It’s super important to do everything we can to protect the health and safety of employees so we can say there was no reckless disregard,” said Birmingham.

If an employee raises their hand and says they think a workplace is unsafe, it’s critical that the employer complies with the Occupational Safety and Health Administration (OSHA) and don’t retaliate against the employee in any way.

Employers should take caution when it comes to an employee’s right to privacy. Before sharing with others that an employee tested positive for COVID-19, employees should ask the individual for consent to share this information.

If the employee does not give consent, explained Birmingham, employers should still communicate with whoever the employee came in contact with that someone working close to them has the virus.

Potential Hurdles

There is a possibility that some employees may want to remain on unemployment instead of returning to work due to increased pay on unemployment or preexisting conditions that could make contracting COVID-19 more dangerous for certain individuals.

“When you call people back and somebody objects, we will consider this a voluntary quit and we expect that your unemployment compensation benefits will end at that point,” said Birmingham. “I think we’ve got to have a couple of caveats with respect to that because we’ve got to treat people with sensitivity and respect.”

For employees with health circumstances that may not want to return to work, employers have an obligation to supply reasonable accommodation, said Kopp. Employers should look at their existing policies and be prepared to make changes as needed on a case-by-case basis. Employers should also prepare to accommodate those impacted by school closings that need to remain home due to lack of childcare, added Kopp.

Learn more in Foley & Lardner LLP’s Coronavirus Resource Center. If your business is interested in accessing Foley’s COVID-19 playbook, contact Jeff Kopp at jkopp@foley.com for more information.