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Legal Pitfalls Loom For Employers Reopening Post-Pandemic

April 22, 2020, Law360

Lindsay Burke and Carolyn Rashby are quoted in Law360 regarding legal dangers and logistical challenges associated with reopening businesses in the U.S.

Ms. Burke says, “We're in a lot of new territory here. I don't think any employers in modern history have had to return to operations in the middle of a global health crisis. And so we're really trying to navigate some new areas of risk and concern.”

About the possibility of employers forcing employees to back to work too soon, she says, “We, as a general matter, have been advising that it might be a good idea to try to begin the process voluntarily. We think the return-to-workplace process is going to take a long time for a variety of logistical and health reasons — the lack of available testing and things like that. But it can also mitigate risk if employees are given the choice to return when the employer wants to begin reopening the work site. And doing so voluntarily will also mean that they'll have a smaller number of employees in the workplace and that will give them an opportunity to test out some of the processes that they probably will want to follow.” She adds, “Taking this one step at a time as a gradual process is not only operationally beneficial, but it's also the right thing to do to try to get it right.”

Ms. Rashby says that while voluntary callbacks may be one way of reintegrating workers, it is just a piece of the larger puzzle employers have to put together when bringing them back into the fold. Other pieces include making sure that any directives from the Centers for Disease Control and Prevention and the Occupational Safety and Health Administration are not being ignored. “Employers also need to make sure that they're following all appropriate guidance from the CDC, OSHA [and] state and local authorities. The voluntary piece is an important first step, but it's also critical for employers to give those employees a safe workplace to return to,” she adds.

According to Ms. Rashby, if businesses are taking workers' temperature and recording it in any way, that information is legally required to remain confidential, and businesses have to tread carefully to avoid overstepping any legal bounds. “For temperature testing and questionnaires, confidentiality would be the key issue, as well as not trying to seek information that the employer is not allowed to request,” she says.

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