On March 30, 2020, Arizona Governor Doug Ducey issued the “Stay Home, Stay Healthy, Stay Connected” order. The order, which went into effect on March 31, 2020, is set to expire on April 30, 2020. While he has not officially released a return to work plan, Governor Ducey previously stated that he would act in Arizona’s best interest, and is considering three options: (1) allow the order to expire; (2) extend the order; or (3) extend the order with modifications.

On April 22, 2020, Governor Ducey issued guidance allowing healthcare providers and dentists to seek exemptions from formerly prohibited non-essential, elective surgeries if they can show they have implemented measures to keep employees and patients safe. This may indicate Governor Ducey’s intentions to let the order expire or further amend it. As we wait for further guidance at the state level, some employers—at least in the corporate setting—are considering a possible return to the workplace on May 4. Below are some of the many considerations for employers to review as Arizona prepares to reopen.

Opening Up America Again

The White House recently issued its Guidelines for Opening Up America Again. Although they  did not provide a specific timeline, the guidelines set forth a three-phase approach. Governor Ducey has suggested that Arizona’s plan will be “basically the same” as those guidelines. At all phases, it is important for individuals and employers to continue practicing increased hygiene, sanitation, and social distancing.

• Gating Criteria: States must satisfy the gating criteria in order to enter phase 1, and then satisfy the criteria each time the state advances to a new phase.
  
  • Symptoms: States must have a “downward trajectory of influenza-like illnesses” for 14 days, and a “downward trajectory of [COVID-19]-like syndromic cases” for 14 days;
  • Cases: States must have a “downward trajectory of documented cases” for 14 days or a “downward trajectory of positive tests as a percent of total tests” in 14 days; and
  • Hospitals: States must treat all patients without crisis care and develop a robust testing program for at-risk healthcare workers.
• Phase 1: Vulnerable individuals should continue sheltering in place. All individuals should maximize social distancing in public places, and social gatherings should be limited to 10 people or fewer. Employers should continue to encourage telework, keep common areas closed, and consider accommodations for members of vulnerable populations.
• Phase 2: Vulnerable individuals should continue sheltering in place. All individuals should maximize social distancing in public places, and social gatherings should not exceed 50 people. Employers should continue to encourage telework, keep common areas closed, and consider accommodations for members of vulnerable populations.
• Phase 3: Vulnerable individuals can resume public interactions while practicing social distancing. At this point, employers may “resume unrestricted staffing of worksites.”

Return to Work Considerations for Arizona Employers

As employers bring back employees from temporary layoffs and furloughs, employers should evaluate return to work considerations and procedures, including:

• Deciding which employees to recall. Employers that are not returning all employees may find it useful to develop a thorough selection process, preferably utilizing objective criteria and train decision-makers.
• Analyzing pay, leave, and benefits issues. Applicable leave and disability laws such as the Family and Medical Leave Act (FMLA) and Americans with Disabilities Act (ADA) may have been triggered during the time employees have spent away from the workplace. It is possible that employees will need to be reclassified under the Fair Labor Standards Act.
• Implementing new safety protocols. This may be a good time to evaluate whether the company continues meet to the Occupational Safety and Health Administration’s general standards and any increased recommendations for mitigating the spread of COVID-19.
• Managing refusals to return to work. Are employees refusing to return to work out of fear of COVID-19, to continue collecting unemployment insurance benefits, or because of a disability? It is important to consider intersecting and overlapping laws, if applicable, including paid sick leave, FMLA, and ADA, among others.
• Maintaining privacy. Employers may want to review, and update as needed, policies on maintaining the privacy of employee medical information as well as steps to keep COVID-19 screening data private.
• Maintaining positive employee relations. Employers may want to consider training supervisors, encouraging open-door communication, and conducting opinion surveys.
• Prioritizing diversity, equity, and inclusion. COVID-19 presents an opportunity to either create or build upon diversity and inclusion initiatives that are designed to increase employee morale and engagement. Employers may want to consider the importance of employee-facing programs to continue to support employees through these challenging times, especially with the childcare issues caused by widespread school closures and other issues.
• Conducting drug testing and background checks. If employees were laid off instead of furloughed, employers may want to consider whether new drug tests and background checks need to be administered.

In addition to these general considerations, employers may want to evaluate any federal, state, county, or local requirements or recommendations that may reduce the further spread of COVID-19, especially as employees return to the workplace. Among these are the following:

• Assessing distancing in cubicle and multi-user work and rest areas;
• Reviewing wall/cubicle heights, especially for employees who do not have private offices;
• Encouraging social/physical distancing in break rooms or consider limiting their usage;
• Considering discontinuing the usage of common devices, including but not limited to microwaves, staplers, and copiers or implementing ways to enhance cleaning of those shared tools;
• Providing adequate personal protective equipment;
• Requiring or permitting employees to use face coverings in accordance with recommendations from the Centers for Disease Control and Prevention and other public health authorities;
• Conducting temperature scans or self-checks prior to employees entering the workplace and carefully evaluating all issues surrounding those checks, such as compensability and physical distancing while waiting for such screening;
• Closing conference rooms that do not permit physical/social distancing and implementing policies for cleaning conference rooms, as well as communicating those processes and protections to employees;
• Implementing policies or procedures for employees who are screened at the beginning of the day but leave the premises for breaks, lunch, or meetings;
• Determining whether continued screening of visitors is necessary and how to lawfully conduct them based on the business realities present;
• Considering rotational office visits (e.g., shifts) to minimize the number of employees physically present in the workplace at a single time; and
• Conducting training prior to employees returning to work to establish the new “normal” and establishing new requirements to minimize the spread of the virus (e.g., no handshakes or handshake alternatives).

As local authorities in Arizona prepare for reopening, such as Pima County’s “Back to Business Task Force,” Governor Ducey continues to stress that Arizona’s reopening will be “methodical,” “incremental,” and “not like a light switch you turn off and on.” As the state closure order draws close to expiration, employers may want to begin considering the many aspects involved with bringing a workforce back and be prepared for a variety of potential scenarios.

Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Critical information for employers is also available via the firm’s webinar programs.