Return to Work Considerations This presentation is designed to - PowerPoint PPT Presentation

JULY 31, 2020 Return to Work Considerations This presentation is designed to provide information to you — not to create an attorney-client relationship that does not already exist. None of these materials is offered, nor should be construed, as legal advice. Accordingly, nothing about your receipt of this presentation or information (including if you provide us with confidential information) or any communication with Kirkland & Ellis or any of its attorneys regarding the same will, except to the extent otherwise provided in a written agreement with Kirkland & Ellis, establish an attorney-client relationship with Kirkland & Ellis or any of its attorneys that would preclude Kirkland & Ellis or any of its attorneys from representing others with interests adverse to you in this or any other matter.

Contents 1 Framework for Returning to Work 2 When to Reopen 3 How to Reopen 4 Once Reopened, What Happens If … ? Appendix State and Major Cities Reopening Summary Chart

Framework for Returning to Work KI RKLAND & E LLI S

Framework for Returning to Work Employers should utilize the framework below to determine when to reopen, best practices on how to reopen and to anticipate key issues once reopened When to ► Determined by state and local government orders ‒ The White House issued non-binding guidance for states and localities to determine when and how to reopen Reopen ‒ See Appendix A for state and local guidance on reopening as of July 30, 2020 How to ► The Occupational Safety and Health Administration (“OSHA”), the Centers for Disease Control and Prevention (“CDC”) and the U.S. Equal Employment Opportunity Commission (“ EEOC ”) have issued guidance for employers on how to Reopen reopen once allowed by state and local government orders, which inform the following: ‒ Modifying the workspace ‒ Infection control measures ‒ Social distancing ‒ Remote work ‒ Face coverings and personal protective equipment (“PPE”) ‒ Screening and testing ► Employers should also identify any applicable state and local guidance or regulations on the above topics ► Employers should consider creating a multi-disciplinary team to analyze and prepare to implement the above guidance and regulations in preparation for reopening Once Reopened, ► Employee tests positive What Happens ► Employees and others are exposed ► Employee requests a reasonable accommodation If…? ► Employee refuses to return to work ► Employee asks to continue to work remotely ► Employee makes a COVID-19-related claim ► Company wants to hire during the COVID-19 Pandemic ► Privacy Considerations are implicated KI RKLAND & E LLI S 4

When to Reopen KI RKLAND & E LLI S

When to Reopen State and ► State governors and local officials will decide when businesses in individual states will be allowed to reopen ► Every state other than Arkansas, Iowa, Nebraska, North Dakota, South Dakota, Utah and Wyoming issued a form of stay-at-home Local order requiring non-essential businesses to cease in-person operations. The states that did not issue stay-at-home orders have Decision nevertheless all imposed limited orders restricting specific types of non-essential businesses. All states have since begun to rescind or modify their respective orders to enable a full return to work White House ► On April 16, 2020, the White House issued “ Guidelines: Opening Up America Again ” ‒ These include criteria for how state and local officials, employers and individuals should approach reopening segments of their Framework – communities Guidance for ‒ Recommend a three-phased approach to reopening ‒ “Gating Criteria” for first phase includes: When / How ► 14-day downward trajectories in influenza-like illnesses and COVID-19 cases to Reopen Non-crisis care treatment of all patients ► ► Having a “robust program” for testing “at - risk” healthcare workers ► Guidelines are not binding on states Reopening ► As of July 30, forty-nine states and Washington D.C. (all states except for South Dakota, which never required business closures) have issued comprehensive directives or orders allowing certain classes of non-essential businesses to resume operations Orders ‒ Some states’ directives or orders allowing for certain businesses to resume operations are restricted only to certain countie s Status ‒ Some states have paused or delayed their reopening in June and July, or even made limited reversals to their reopening orders ► The scope of businesses permitted to reopen and the process for doing so vary. Most states have lifted restrictions on general non- essential businesses, but certain classes of non-essential businesses may remain closed or closed to indoor operations in some states, including most often bars or entertainment businesses ‒ Alabama, Alaska, Arizona, Arkansas, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Ohio, Oklahoma, Pennsylvania, Rhode Island, Tennessee, Texas, Vermont, Virginia, Washington (most counties), Washington D.C., and West Virginia have enacted orders that allow broad categories of non-essential businesses (including most non-public facing office workers) to resume operations, subject to certain health and safety requirements. Certain businesses in these states may remain restricted from reopening, as specified in the relevant orders ► All states permitting business to reopen require compliance with protective guidelines, typically including: ‒ Implementing enhanced sanitation practices, including regular hand washing and cleaning, as well as use of face coverings and/or PPE for certain services ‒ Requiring businesses to maintain social distancing of 6 feet whenever possible, and comply with an occupancy limit ranging from 25%-100% of maximum legal occupancy KI RKLAND & E LLI S 6

How to Reopen KI RKLAND & E LLI S

How to Reopen – Overview of Guidance ► The requirements of state/local orders and guidance, together with the federal guidance below, inform employers how to plan/prepare to reopen ► Federal regulatory regimes provide guidance to help employers identify risk levels in workplace settings and determine what control measures to implement ‒ OSHA’s “ Guidance on Preparing Workplaces for COVID-19 ” provides guidance regarding classifying worker exposure risk, steps to reduce workers’ risk of exposure and specific guidance for different worker exposure risk levels. OSHA’s “ Guidance on Returning to Work ” provides additional guidance to help employers and workers in safely returning to work. OSHA has also provided industry-specific guidance and alerts. ‒ CDC has released numerous guidance documents related to returning to work, self-isolation and reducing the risk of exposure. ‒ EEOC has released guidance documents that address employers’ responsibilities under the Americans with Disabilities Act (ADA), including with respect to employee screening for COVID-19 symptoms such as fever How you implement the state/local orders and guidance, federal guidance, and other workplace strategies depends on the nature of each workplace STATE/LOCAL ORDERS AND GUIDANCE FEDERAL GUIDANCE Modifying the ► States have required an increase in physical space between ► For certain workplaces, OSHA recommends physical Physical Workplace workers and customers (e.g., maintaining at least 6 feet modifications such as installing physical barriers (e.g., clear between people), reduction of seating in waiting areas and plastic sneeze guards), drive-through windows for customer other areas within establishments service, or high efficiency air filters Infection Control ► Common elements include routine cleaning and disinfecting ► OSHA and CDC have similar recommendations as state orders Measures surfaces, requiring hand washing, providing sanitation products and staying at home if sick Social Distancing ► Generally require maintaining social distancing of 6 feet ► White House, OSHA and CDC recommend the continued between customers, where possible; reduce enforcement of social distancing, reconfiguration of workplaces, occupancy/capacity limits ranging from 20% to 50% of and limitations on common area access maximum legal occupancy; and limit access to common areas Remote Work ► Generally provide that employers consider establishing remote ► White House, OSHA and CDC recommend that employers work options where possible should implement remote work options where appropriate Face ► Some states require that all employees wear face coverings, ► CDC and OSHA generally recommend that employees wear face Coverings/PPE while others have generally limited the requirement to workers coverings. OSHA also requires employers to conduct a hazard in specific industries assessment of the workplace, and, where necessary, provide workers with PPE selected based on the hazard to the worker as a result of the worker’s specific job duties. Masks or other face coverings with exhalation valves should not be worn if needed for source control. Screening and ► Many return to work orders require that employers screen their ► EEOC and OSHA guidance confirm that employers may screen Testing employees for signs of illness their workforces for COVID-19 symptoms 8 KI RKLAND & E LLI S