Now that stay-at-home orders are being lifted, hotels wishing to reopen will be confronted with a unique set of issues when developing return-to-work plans and safety protocols. There is no one-size-fits-all approach to reopening, but the following considerations will assist you as you develop a plan for your hotel.
Recalling Furloughed Employees and the Rehire Process
Preparing to recall employees from furlough may prove to be a complicated issue, particularly since it is likely that occupancy rates will be far lower than they were before the COVID-19 crisis began. As a result, many hotels will be not be recalling all employees who previously worked at a property, or will be welcoming employees back on a reduced basis. When determining who to recall, employers should consider their obligations under any applicable agreements and policies, including any relevant collective bargaining agreements. Employers also should consider the methodology of selecting employees to return to work (recall by seniority, merit, need) and the potentially disparate impact using such methodologies could have on employees who fall into protected categories. Employers further should consider whether moving employees from furlough to any other status might trigger notice obligations under the Worker Adjustment and Retraining Notification Act and similar state statutes.
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Employers also should anticipate that some subset of employees may not want to return to work until the COVID-19 crisis dissipates. For instance, if an employee cannot return to work, or has become limited in his or her ability to work due to an underlying health condition, the Americans with Disabilities Act may provide certain protections to the employee. An employer should treat that response as a request for an accommodation under the ADA and equivalent state or local laws. Such a request triggers the employer’s obligation to engage the employee in the interactive process.
Additionally, under the Families First Coronavirus Response Act, an employee may qualify for two workweeks of emergency paid sick leave if they are directed to self-quarantine from a health-care provider, or if their child’s school or place of care is closed or their childcare provider is unavailable. Various states also have passed leave laws, so hotels will have to ascertain whether an employee who is reluctant to report back to work is eligible for a protected or paid leave of absence.
Enhanced Cleaning and Social Distancing Protocols
Industrywide surveys indicate that consumers and staff have heightened concerns regarding hygiene in hotels. Convincing employees and guests to trust in cleanliness standards will be critical to restarting. Accordingly, hotels should focus on the creation of enhanced cleaning and social distancing protocols. To start, employers should review the U.S. Centers for Disease Control and Prevention and industrywide guidance on cleaning and disinfecting facilities. For example, the American Hotel & Lodging Association has established a Safe Stay and Advisory Council to develop industrywide cleaning standards, and the World Health Organization has issued interim guidance on operations considerations for COVID-19 management in the accommodation sector.
These organizations have developed enhanced cleaning protocols that recommend extra disinfection of 10 high-touch areas in guestrooms, such as light switches, door handles and thermostats. Additional measures under consideration by several major hospitality companies include: installation of keyless entry to hotels rooms via smartphones; installation of hand-sanitizing stations at hotel entrances, elevator banks and meeting spaces; removing shared high-touch items like magazines, local attraction pamphlets and communal snacks; room seals to indicate a guestroom has not been accessed since the last deep cleaning; and pamphlets detailing cleaning and disinfection procedures in each room.
Management also should consider measures to maintain social distancing, such as:
• Splitting employee shifts;
• Staggering meal and rest breaks;
• Limiting the number of employees permitted in meetings/confined spaces;
• Installing social distancing markers to indicate where employees and guests can line up or congregate;
• Installation of Plexiglas barriers at concierge desks;
While the CDC has indicated that the risk of exposure to cleaning staff is inherently low, employers should ensure staff responsible for cleaning the facility have access to personal protective equipment. It is important to ensure such PPE and other protective measures are compatible with the manufacturers’ guidance on each of the cleaning/disinfectant products utilized. Employers may also consider allowing housekeeping staff extra time to clean rooms without minimizing pay. Several hotel companies have revamped the typical once-a-day automatic housekeeping service. For example, a major hotel brand is offering guests three options: normal housekeeping; a light service limited to emptying the trash, supplying fresh towels and new amenities; or no service at all. Hotels also have created a new role entitled “hygiene manager” to oversee the enhanced cleaning protocols.
Employee Health Screening Requirements
According to published surveys, nearly 60 percent of employers plan to conduct employee testing and/or health screenings, including temperature checks (89 percent), symptom screenings (72 percent), antibody tests (8 percent) and antigen tests (7 percent). At a minimum, temperature checks and daily screening questionnaires of employees are key elements of a company’s defense against contagion as employees re-enter the workplace. While the U.S. Equal Employment Opportunity Commission has released guidance in this area, making clear that daily temperature checks of employees are permissible, uncertainty remains around implementation, biometric privacy and litigation risks.
Employers can ensure CDC guidelines are followed by using noncontact thermometers, ensuring that employees who are responsible for conducting the screenings have PPE and training, and safeguarding the temperature readings and symptom questionnaires of each employee as confidential. Employers should ensure the protocol is applied consistently to all employees, and that it is clearly communicated throughout its organization.
Employers may also consider implementing coronavirus training for staff, including reminders on how to preserve social distancing when interacting with each other and hotel guests, how to wear masks and change gloves properly, frequent handwashing and the hotel’s enhanced cleaning protocols. The training will empower staff to readily answer guests’ questions regarding the hotel’s COVID-19 protocol.
Litigation Risks and Conclusion
Many employers have expressed concern about potential lawsuits upon reopening. The top three areas of concern are claims regarding leaves of absence entitlements, unsafe working conditions and workers’ compensation. In the landscape of uncertainty, routinely checking and actively complying with guidance provided by federal and state agencies are vital in offering employers insight on the steps to safely reopen their workplaces.
Eli Z. Freedberg is a shareholder and Sana Ahmed and Thelma Akpan are associates with Littler, a labor and employment firm representing management.