Bringing People Back
Set the stage for success with a great return-to-work program.
As florists start to bring workers back into their stores, a successful re-entry program is important to ensure the safety of both employees and customers; obviate charges of discrimination and invasion of privacy; and avoid actions that inadvertently violate federal, state and local employment laws. Employers should set a positive tone to motivate their personnel in a difficult environment.
Many workers are eager to return to their stores—especially creative types. In managing this reverse migration, retailers must coordinate safety procedures and showroom modifications while communicating effectively with employees.
The greatest challenge may be convincing everyone it’s safe to come back to work. “Many people are still scared, and their fear is valid,” says Bill Hagaman, CEO and managing partner of Withum, an international advisory and accounting firm. “The risk of the virus impacting someone at any moment continues to be very real.”
Florists must ensure that no one gets sick by visiting their stores. But the reasons for doing so go beyond health and morale. Work-related illnesses can spark injury lawsuits, workers compensation claims or charges that the employer failed to provide a safe workplace as defined by the Occupational Safety and Health Administration (OSHA).
Most safety programs will begin with the physical plant. “The retail store must be thoroughly cleaned,” says Richard Avdoian, of Midwest Business Institute in Edwardsville, Ill. “Attention must be paid especially to the common areas, restrooms, checkout counters, workbenches, telephones, lunch tables, chairs, desks, etc.. Sanitizing gels should be made available throughout.”
Federal and state authorities are also offering guidance on a popular method for reducing the risk of infection: taking the temperatures of arriving employees. The prevailing guidance from the Centers for Disease Control and Prevention (CDC) is that any temperature above 100.4 degrees warrants sending the employee home for the day. If the temperature is above normal but below 100.4 degrees, the guideline is to wait 15 minutes and take the temperature again to see if it is still above 100.4. Advisories are also available from local and state authorities at various levels of detail.
Health procedures of any kind pose legal issues. “What do you do if a person has a fever?” poses Gregg. “How do you and respond in a way that does not single them out and violate their privacy?” If doorway health inspections help boost morale, employers should realize they are not sure things. An individual can be infected with COVID-19 without having a fever; however, the medical community still believes that temperature checks are important for ensuring workplace safety.
No safety plan can succeed if too many people crowd into a store. Many larger businesses are moderating the flow by bringing back employees in stages and limiting the number of customers in the store. Some are separating their staffs into two or more teams and allowing one group back at a time. “Employers should consider staggering shift times or establishing an alternating workday or workweek schedule,” says Sholinsky. “They should be flexible and creative in developing policies that maximize productivity and ensure the highest levels of safety.”
In flower shops, for example, design work for the following day can be done in the evenings, after the store is closed. Also, give special thought to parents of school-aged children in states where schools are (or will be) closed.
Deliveries pose an additional consideration for florists. Consider implementing a delivery procedure that would eliminate contact with the recipients; for example, have the driver call the recipient before or when he/she arrives at the recipient’s location and leave the delivery in an agreed-upon location. In addition, consider offering curbside pickups.
Employers with larger staffs need to avoid intentional or nonintentional discrimination in the pool of people returning to work. “When everyone is not recalled, the demographics of the exceptions should be worked through,” says Gregg. “There should be no pattern by age, disability, race or gender.” In addition, the law explicitly prohibits taking adverse actions against anyone who has taken time off as a direct result of the COVID-19 outbreak. “Employers may be subject to retaliation claims when employees are terminated or subjected to adverse employment actions after they have taken sick leave, a leave of absence under the Family and Medical Leave Act (FMLA) or under a COVID-19-specific law such as the Families First Coronavirus Response Act (FFCRA),” says Sholinsky.
The Americans with Disabilities Act (ADA) and equivalent state and local laws create an especially hazardous legal terrain. An employer should not deny a request to work from home if that would be a reasonable accommodation for a COVID-19 related disability. In a flower shop, that might include doing bookwork, making bows, dressing plants and even designing arrangements from home.
It may be wise now to record any inefficiencies that have arisen from recent work-from-home activity. “Waiting to document difficulties until after a request for continuing home-based work is made will seem like an after-the-fact justification,” says Gregg. “That carries much less weight with investigators or courts.”
The ADA legal coin has an obverse side. “Some employers may decide to keep people with underlying conditions— the at-risk folks—from returning to work,” says Gregg.
Yet excluding at-risk people can be tricky. “Who is at risk?” poses Gregg. “Anyone over the age of 60. So, the employer is tempted to say, ‘Older people cannot come back.’ Well, that means they cannot earn money, and that can create an age-discrimination issue.”
The decision to exclude people from a back-to-work program must be based on more than a stereotypical presumption, says Gregg. The ADA’s “direct threat standard” states that employers can exclude workers only when there is actual evidence that they pose direct threats to themselves or others—perhaps because they have told the employer they have an underlying condition or they have a relevant symptom.
The need for a direct threat extends to a requirement for a medical examination. “The employer cannot send someone to the doctor to validate that they are okay to come back to work, if that same requirement was not made for everyone else,” says Gregg. “There needs to be more than a perception of a disability to send a person to the doctor.” In addition, employees made to stay at home may lose out on valuable perks of working at the store. “These might include client contacts, important meetings or just generally being ‘in the know,’” says Gregg. “They might even miss out on promotions: If you are not seen, you are not considered. So if you pick and choose who stays home, you have to be careful about picking some people and not others.”
Creating a safe store is one thing; building the trust of employees is another. Employees and customers alike must be assured that everything possible has been done to protect their health and safety. Transparent communication is critical right now. Hagaman suggests addressing these questions:
- How will you assess the health of your employees prior to walking into the building?
- Where will your employees find supplies such as face masks and sanitizing wipes?
- What parts of their workspace will be closed? Will break rooms be open?
- Who will be allowed in the building, and when?
Not the least of challenges is that of communicating new procedures to employees. Some employers are sending emails with answers to such questions. Others are posting informative signs in the workplaces. And others are packing personal protective gear into “goody bags” and handing them out to their returning employees.
All such steps can calm fears, but communications must be presented in a forward-looking spirit. “As people start re-entering the workplace, employers might create a return-to-work “rally” [remember social-distancing guidelines and group restrictions!] with a positive tone,” says Avdoian. “Another way to encourage good morale is to ask for a volunteer(s) to be in charge of addressing staff concerns.”
The pandemic has presented retailers with opportunities to retool their operations, finding ways to work more productively and utilizing technology more efficiently. “We should create new policies and procedures in response to the pandemic as we do when faced with any obstacle or challenge in the business world,” says Avdoian. “We are always looking for ways to enhance our products and services. This is another opportunity to do so.”