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Q&A: Texas employers mulling testing, worker concerns amid reopening – Seyfarth partner

Daniel Wiessner  

Daniel Wiessner  

(Reuters) - Friday marked the beginning of Texas’ efforts to reopen its economy amid the coronavirus pandemic, and businesses that are opening their doors are walking through a minefield of legal risk as they grapple with screening and protecting employees and limiting how many customers they serve, the chair of Seyfarth Shaw’s Houston labor and employment practice told Reuters.

The first phase of Republican Governor Greg Abbott’s plan allows restaurants, movie theaters, retail stores and malls to reopen, but they must limit their capacity to 25% of a location’s “listed occupancy,” or 50% in counties with fewer coronavirus cases. That could deter some businesses from reopening immediately, Seyfarth’s Steve Shardonofsky said on Friday.
Reuters spoke to Shardonofsky about the various issues facing Texas businesses, including the state’s requirement that retail establishments screen workers for symptoms of COVID-19. At least 16 states have mandated testing of some workers, and at least another 14 states recommend it.
Questions and answers have been edited for clarity and brevity.
REUTERS: How much guidance has the state given employers on their legal responsibilities as they reopen?
SHARDONOFSOKY: The governor’s executive orders do not require employers to implement specific protocols but strongly recommend that they adopt protocols recommended by (the Centers for Disease Control and Prevention and Occupational Safety and Health Administration). If employers don’t comply with those guidelines they could potentially face OSHA citations or negligence and workers’ compensation claims by employees. The governor has not provided employers with advice on how to address or mitigate liability, but did issue a report that includes helpful safety protocol checklists for different industries.
REUTERS: Will some employers have to lower capacity under 25% in order to observe social distancing and other practices?
SHARDONOFSKY: Yes, a business where 25% occupancy would not allow workers or customers to comply with the six feet of isolation would have to take extra steps to mitigate potential legal risk and reassure the public that they are operating safely. The business would have to consider scaling back its operations or changing the way the workplace is configured.
REUTERS: And could some businesses decide not to reopen immediately because of the limits on capacity?
SHARDONOFSKY: Certainly some businesses are going to decide either for financial or logistical reasons that it’s not worthwhile for them to open during the first phase. Given that many furloughed employees are receiving unemployment insurance benefits, and many businesses may not be profitable operating at 25% capacity, some maybe can wait to reopen.
REUTERS: What tends to be the top concerns of employers that are in the process of reopening?
SHARDONOFSKY: One difficult question is how to address workers’ concerns about returning to work and handling employees who simply refuse to return. Employers should acknowledge that employees and customers have legitimate fears about venturing out. The key is to understand the basis for their concerns. Is it based on an underlying medical condition or is the worker in a high-risk group? Is it because they don’t have childcare and schools are closed, or some other reason that may not even provide legal protection to the worker? Employers have to get creative about different alternatives.
REUTERS: What challenges do employers face in implementing health screenings?
SHARDONOFOSKY: That’s going to be a huge change for employers and workers. Whether employers do temperature checks or have employees fill out questionnaires about their symptoms or implement other screenings, they are going to have to implement new processes and protocols and make sure they communicate all of it to their workers. And that’s not to mention the logistical challenges of implementing the screenings at large workplaces and maintaining privacy and confidentiality standards.
REUTERS: What are the most common types of screenings that employers are using?
SHARDONOFSKY: At this point, temperature screens and self-disclosure seem to be the most popular and the easiest types of screens to implement. The Equal Employment Opportunity Commission has approved administering tests for COVID-19 in the workplace and testing for antibodies. But those tests are more expensive and difficult to administer, so it seems they have limitations in the workplace. In some cases it may not be necessary or even appropriate to do actual testing.

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