By Patrick Connelly, originally published in Buffalo Business First, Buffalo Law Journal on Mon, 11 May 2020 09:44:00 EDT.

Consider legal items as return to work ramps up 

There are many hurdles for businesses to negotiate when employees return to work, but one fact is already known: Things will be different.

Buffalo attorneys James Grasso of Phillips Lytle LLP and Mark Moldenhauer of Bond Schoeneck & King PLLC suggested businesses should form plans now to keep workers safe.

“One important thing that we’re stressing is it can’t be done by a cookie-cutter type of approach,” Moldenhauer said. “The plans are not going to be one-size-fits-all, even within an industry. Businesses are going to have to develop their own unique plan to help address their own workplace situations.”

Business leaders must be aware of state and federal requirements that will vary in different sectors, but Grasso said common requirements will be increased sanitation and cleaning.

“The first is going to be balancing workplace safety versus operational needs,” he said. “Employers are going to have to ingrain and implement new protocols for employee safety.”

Businesses will have to determine how to give employees who typically work in close quarters more space, Grasso said. When that’s not possible, protective equipment must be provided. Businesses most at risk are the ones in which employees have contact with the public.

“You have seen that already taking place at the supermarkets and retail outlets,” Grasso said. “In addition to increasing the safety protocols, I think this is going to increase expenses for employers.”

Staggered work shifts and limited face-to-face meetings should be considered.

Moldenhauer said his firm has examined five areas:

  • Risk assessment
  • Workplace safety plan to provide a sanitary environment
  • Infection response plan
  • Assessment of policies for staffers
  • Management and staff communication

An infection plan in case of a workplace outbreak should include how to notify employees and how to identify potential points of exposure. Training may be needed to keep employees and management on the same page, Moldenhauer said.

Guidance is available from the Occupational Safety and Health Administration, Centers for Disease Control and Prevention and Equal Employment Opportunity Commission.

“I think a lot of employers will want to keep employees who they think have underlying medical issues out of the workplace or segregate them. And they’re going to have to be careful that situation doesn’t turn into a discrimination claim,” Grasso said.

There may not be much recourse for employees who feel it is unsafe to return to work, Grasso said.

“Employees’ anxiety or fear of contracting the virus is not going to be justification for them refusing to come to work,” he said. “That’s one reason why employers have to make sure that they at least do the minimum safety and sanitation requirements. They have an obligation to provide a safe workplace under OSHA, and that’s going to require taking these minimal steps to prevent or reduce the chance of infection.”