Global Re-Opening: Considerations When Employees Return to the Workplace
As we previously reported, the COVID-19 pandemic has significantly altered the global workplace and international employer-employee relations. Over the past several months, many countries have enacted nationwide orders requiring billions of people to stay at home in an effort to reduce transmission of COVID-19. While some countries remain locked down, others, have recently initiated progressive measures to re-open businesses and return employees to the workplace, with varying degrees of success:
Germany: On April 27 Germany began allowing shops as large as 8,600 square feet to re-open, as well as book stores, car dealerships and bike shops, provided that they continue to adhere to strict social distancing and sanitation rules. Following a small spike in transmission, however, on April 30 German Chancellor Angela Merkel stated that Germany would postpone any decision to re-open fully schools until there is a greater understanding of the loosened restrictions’ effects on the spread of COVID-19.
India: India has extended its lockdown until May 17. During this extended lockdown, India continues to suspend all domestic and international air travel, passenger trains, and interstate buses. Schools, hotels, gyms, theaters, and places of worship remain closed. Meanwhile, grocery stores and pharmacies are allowed to stay open. Face coverings are required in all public places, and gatherings of more than five (5) individuals are prohibited. India has announced a phased re-opening, under which health officials will designate areas as red, orange, or green zones, depending upon the concentration of COVID-19 cases in those areas.
Malaysia: On May 1, Malaysian Prime Minister Muhyiddin Yassin announced a conditional re-opening of the country beginning May 4, under which almost all industry and business activities will be allowed to restart operations, provided that such activities comply with relevant authorities’ standard operating procedures. Employers are encouraged to continue to allow working from home or working on a rotating basis. Schools, entertainment facilities, religious events that draw crowds, and beauty services are among those that are not permitted to re-open. Some Malaysian states have elected not to participate in the re-opening measures.
Spain: Beginning May 2-4, Spain initiated a multiphase plan to re-open by the end of June, in which each phase will be implemented over the course of approximately two (2) weeks. During the current first phase, individuals are allowed to exercise outside their home and to receive beauty services and restaurants may serve takeout, again provided that social distancing and sanitation measures remain observed. Spain’s next phase will allow outdoor sections of bars and restaurants to open at 50% capacity and groups of ten (10) or fewer people will be permitted in public places and residences.
Multinational employers that are preparing for employees to return to the workplace should be prepared to implement new practices and protocols to maintain a safe work environment while the COVID-19 pandemic continues. While there are no one-size-fits-all policies or practices when operating an international workforce, employers may begin to consider certain risk factors and precautionary measures in anticipation of employees returning to the office.
Mandatory Testing Upon Return to Work
Employers should consider whether to require employees to submit to precautionary COVID-19 tests and measures prior to entering the workplace. In addition to requiring employees to have their temperature taken, employers may consider requiring employees to take one of the many different diagnostic tests that are emerging on the market. Employers should be mindful of whether any tests that may be used have been approved by public health and safety agencies, such as the Food and Drug Administration or the European Medicines Agency. Additionally, before requiring COVID-19 testing, employers should be aware of many considerations, including but not limited to the following:
Assess the type of COVID-19 test that may be most suitable for the workplace. A less-invasive diagnostic test that analyzes whether an individual currently is infected may be more suitable than a serologic (or antibody) test that indicates whether an individual previously has had an infection.
Whether to limit any testing only to those employees who present symptoms of COVID-19. As a recent review by the Centers for Disease Control (“CDC”) suggests, COVID-19 may be spread from pre-symptomatic or asymptomatic individuals. As such, employers may consider testing all employees prior to their returning to the workplace.
Whether to limit testing only to those employees who regularly work at the office, as opposed to those who regularly or exclusively work from home.
Whether to require testing to be completed onsite or to provide employees with the option to be tested at their personal healthcare provider.
Determine whether employees must consent to a COVID-19 test or whether labor unions or works councils must be consulted prior to implementing such a testing requirement.
Implement procedures if and when employees refuse to consent to required tests. In addition, employers should consider appropriate responses in such circumstances, for example, progressive discipline or immediate termination.
Develop a reporting and recordkeeping protocol. Employers should determine to whom positive COVID-19 test results will be disclosed, whether only to affected employees, other employees, and/or government entities. Employers should consider the privacy implications of reporting and recordkeeping practices and should ensure adherence to applicable local law.
Employee Health Certification
Employers may consider requiring that all returning employees certify certain health information regarding exposure to COVID-19. This may include requiring information as to whether employees have been diagnosed with COVID-19, whether they are exhibiting or have ever exhibited COVID-19 symptoms, and/or whether they have been in contact with someone who has been diagnosed with COVID-19 or exhibited COVID-19 symptoms. Depending on the jurisdiction, such inquiries may not be legal or recommended. Employers should develop processes to respond consistently to employees who respond to any COVID-19 health questions affirmatively (e.g., not allowing such employees to enter the workplace). Similarly, employers that request employees to certify certain health information also should consider what procedures to follow in the event that employees refuse to answer such health-related questions (e.g., progressive discipline or immediate termination). Employers also must comply with country-specific privacy requirements.
Wearing Face Coverings in the Workplace
Another measure that employers may consider is whether to require returning employees to wear face coverings in the workplace. Generally, such measures likely are permitted in most jurisdictions as a means to protect all employees’ health and safety. When implementing face covering requirements, employers again should consider processes to follow should employees refuse to wear such protective equipment. In some cases, terminating employees for an initial offense may not be reasonable. Instead, progressive discipline, beginning with an initial warning and escalating in the event of additional violations of workplace policies, may be appropriate.
Refusal to Return to Work
As businesses begin to re-open, employers may find that some employees may refuse to return to the workplace. As a best practice, employers should evaluate such instances on a case-by-case basis. Employers should consider whether employees refuse to return to work based upon personal preferences, government recommendations, and/or information from healthcare providers. Employers should also assess whether employees’ essential job functions require their working onsite or whether such employees may work remotely. In addition, employers should consider those disciplinary procedures that should be taken in the event that employees refuse to return to work. Depending on local law, as well as specific company culture, immediate termination may be too harsh a response, and progressive discipline may be more suitable. Alternatively, it may make the best business sense to accommodate employees’ wish to work remotely or not to return to work where telework is not feasible.
While many countries’ re-opening plans include loosening restrictions on local travel, many employees, particularly those who commute via mass transit, may be wary of returning to the office. As a practical matter, where workable, it may be best for employers to accommodate employees’ desire to work remotely, or not to return to work where remote work is not available. In addition, several jurisdictions are prohibiting international visitors and may require immediate quarantine upon arrival. Given this, employers should limit non-essential business travel and should consider prohibiting international travel.
In the end, when evaluating how to respond to the challenges presented by the COVID-19 pandemic, employers should be pragmatic and practical. The circumstances that have resulted from COVID-19 are, novel, and multinational employers of all sizes are attempting to cope with a complex, unpredictable and rapidly changing environment. During this difficult time, employers should remain cognizant that many governments have enacted legislation and have issued guidance to support employers and employees. As such, employers should contact legal counsel to localize policies and practices to ensure that best legal practices are maintained that still adhere to company culture and longstanding company practice.