Robert J. O’Hara, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s New York office, was quoted in SHRM, in “Businesses That Are Temporarily Closing Worksites Face Hard Choices,” by Allen Smith.

Following is an excerpt:

Some reopened worksites are temporarily shutting their doors again as a result of state orders or local spikes in COVID-19 infections. These businesses are facing tough choices over when to close in one area while remaining open elsewhere and whether to furlough or lay off employees who can’t telecommute.

Three states—California, Florida and Texas—have implemented new policies that partly restrict restaurant or bar service, reported The Washington Post on June 30. Nine others—Arkansas, Delaware, Idaho, Louisiana, Michigan, Nevada, New Jersey, New Mexico and North Carolina—have postponed or slowed reopening plans, it added. …

Infection History

The safest and easiest course in deciding whether to reclose worksites is to follow state and local government pronouncements, said Robert O’Hara, an attorney with Epstein Becker Green in New York City. Localities “will be following inspection spikes and hospitalization usage closely,” he noted.

“Another important consideration, if you don’t have a government edict, is the infection history in your workplace,” O’Hara said.

As businesses have reopened, coronavirus infections have emerged in some locations, either from work-related or outside activities. “It is very difficult to tell the difference, but the impact [on the workforce] would be the same,” he said. “If infection occurs and is not isolated—more than a few cases in a location—an employer would be hard-pressed to stay the at-work course.”

Employers may need to quickly shift back to remote work, to the extent possible. “Employers should be giving this a lot of thought as they start to re-engage and congregate,” O’Hara said. …

Multistate Employer Considerations …

When temporarily closing due to high infection rates in the workplace, even without any government closure order, be consistent in the criteria applied in the decision, O’Hara said.

For example, if a certain percentage of COVID-19 infections triggers the closure of a site in one locality, the same percentage should result in the closing of other facilities. The trigger might be a percentage of the workforce impacted, actual numbers of cases or some combination thereof, he said.

If an employer needs to keep one site open while closing another, it should have a compelling rationale for doing so because employees at the location that remains open likely will challenge the decision, he said.

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