To Reopen or Not to Reopen? How COVID-19 Impacts Nonprofits' Decision to Return to the Office
In a recent webinar, attorneys from Venable's Nonprofit, Labor and Employment, and Employee Benefits and Executive Compensation Practice Groups addressed the practical and legal considerations for those nonprofits deciding whether to reopen their physical office spaces in the time of COVID-19. The panel addressed the step-by-step processes to determine if reopening is feasible and, if so, how to safely address the universe of issues related to the preservation of employee health and safety.
Employers have to process tremendous amounts of information regarding the local, state, and federal guidelines and best practices related to COVID-19, which are constantly changing and evolving. In taking a commonsense approach to reopening, nonprofits should assess their current operations, asking if there is an actual need to reopen their offices and why. Next, nonprofits should assess the specific measures that will be necessary for compliance with the applicable guidance, and the financial and administrative burdens associated with each measure. Finally, nonprofits should look ahead to potential liability and any claims that might arise from reopening, weighing the benefits of reopening against the risks.
Is it necessary to reopen a physical office?
A key element in determining whether reopening physical office space is necessary is the evaluation of work productivity and delivery of services in a virtual environment. Nonprofits may be facing issues of low productivity and low employee morale, which might be addressed with a series of strategic changes in lieu of the reopening of an office. For example:
- To increase productivity, develop and implement a policy specific to teleworking. Set forth clear rules and expectations around work hours, conference participation, timely response to emails and phone calls, leave policies, etc. Some workplaces may benefit from asking employees for a daily log of the projects and tasks performed.
- To boost employee morale, remind employees of any benefits available to them, like employee assistance programs (EAPs), telehealth services, mental health resources, videoconferencing platforms, and instant messaging services, among others. New uses of technology may be leveraged for ease of employee use. Employers may also institute weekly or daily check-ins with employees to reach them on both a substantive and an emotional level.
What are the guidelines to follow when developing a reopening plan?
Determining the measures required for reopening can be difficult for employers to navigate. Compliance can also present a challenge because of the volume of information and the speed at which it changes, leaving workplaces vulnerable to violations, inadvertent or not. The penalties for non-compliance can include monetary fines, which can compound financial hardships already facing many nonprofits. To attempt to remain compliant at all levels, nonprofits should consider assigning to an employee or group of employees the task of routinely reviewing the applicable guidance and all associated changes in real time. Guidance to consider when contemplating a reopening should include:
- General Duty clause of the Occupational Safety and Health Act (OSHA), which requires employers to maintain a workplace that is free of hazards that can cause death or serious harm. There are monetary penalties for these violations.
- Centers for Disease Control (CDC) guidance; specific helpful pages include
- FAQs for business reopening
- How to handle suspected or confirmed cases
- When employees return to work
- State and local
- State executive orders, county- and city-level orders. This guidance addresses what the state/locality reopening plans entail as well as the current "stage" of reopening
- Typically includes industry-specific guidance: restaurants, offices, concert halls, etc.
- State OSHA standards (currently only Virginia) and guidance. State standards may include punitive measures in the form of fines
There are some commonalities across the spectrum of guidance that nonprofits must implement for a reopening – regardless of location – which may include:
- Physical and social distancing
- Face mask requirements
- Screening employees via self-assessment or on-site screening
- Encouraging sick employees to stay home
- Keeping accurate records of all actions taken and the rationale for them
- Cleaning and disinfecting often
- Providing places for safe hygiene practices and adequate stocks of cleaning supplies
- Training employees on COVID-19 policies
- Maintaining a plan for responding to COVID-positive employees
What are the financial and administrative requirements for a safe reopening?
Nonprofits need to assess the financial and administrative burdens associated with reopening offices.
- To analyze the direct financial costs, organizations should:
- Evaluate the physical office space to determine configuration needed for compliance (plexiglass barriers, etc.). For difficult configurations, nonprofits may need to hire a consultant
- Evaluate cost of required supplies – face masks, hand sanitizer, cleaning supplies
- Consider whether subsidies to employees will be provided – parking, child care, etc.
- Evaluate cost of maintaining adequate cleaning services and determine if there is any need to increase frequency or implement special disinfecting protocols if COVID-19 is detected in the workplace
- Determine costs associated with daily screenings and testing
To analyze administrative compliance costs, which are not direct costs incurred but rather "hidden" costs associated with a reopening, consider the time and effort needed to research and analyze guidance, create compliant policies, and implement procedures. This would include policies applicable to all employees, as well as internal management policies.
Employee policies may include:
- Policy for ensuring capacity limitations and/or on-site restrictions are satisfied
- Procedures for reporting COVID-19 positive results and COVID-19 symptoms
- Daily screening measures
- Frequency of disinfecting personal workplace based on applicable guidance or best practices
- Social distancing rules
- Policies for personal protective equipment (PPE)
- Common area usage policies.
- Travel policies and restrictions
- Visitor policy
Internal management policies and procedures are also critical for effective reopening. Management will need to understand and enforce all policies on behalf of the organization, like capacity limitations, properly reporting COVID-19 in the workplace, understanding data collection procedures and the handling of personal health information, contact tracing procedures, and disinfection expectations.
As part of a reopening plan, nonprofits should have a working knowledge of the Americans with Disabilities Act (ADA) interactive process so that requests for an accommodation – like teleworking or unpaid leave – are properly addressed.
Addressing leave issues related to COVID-19 will also be a time-consuming task. The Families First Coronavirus Relief Act (FFCRA) provides additional leave to employees within certain organizations and businesses. In the event of office reopenings, employees may utilize leave options like those offered by FFCRA. The quick pivot to remote work may leave employees with the impression that teleworking in the future is a viable option; nonprofits should develop policies to specifically address this issue. Employees should be properly trained on all policy changes as well as new ones created to address behavioral shifts. Consider appointing one person to oversee the administration of these policies and the employee training that accompanies them.
Will my nonprofit be exposed to liability if it reopens?
There are new and unusual lawsuits appearing related to COVID-19 in the workplace. These include gross negligence suits alleging an employer did not provide adequate notice or take adequate safety precautions for employees in the workplace; wrongful death suits, where an employee or guest contracted COVID-19 and died as a result; and public nuisance claims, in which allegations arise that an employer did not take COVID-19 seriously and contributed to creating a harmful or unhealthy situation.
Nonprofits need to carefully assess all potential liability that may result from an office reopening. Employees have the right to file claims, including OSHA and ADA claims. Additionally, worker's compensation claims are possible, with guidelines varying by state in claims related to COVID-19. Requiring employees to sign a waiver is not recommended, nor is it a best practice. Waivers are unlikely to reduce an employer's liability. Instead, use an acknowledgment signed by each employee stating that policies and protocols have been shared and understood.
Should my nonprofit reopen?
If the potential liabilities associated with reopening are less significant than the benefits of returning to the office, reopening might make sense. If not, consider continuing to operate remotely. The reopening process is not without risk, and it is likely that a nonprofit will spend a significant amount of time and money on a reopening. If your nonprofit decides to reopen, keep communications transparent and ensure employee issues are addressed in accordance with applicable law and guidance.