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Check-Up Clinic: Re-Opening Advice

Posted: 7/16/2020

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A Guide to Re-Opening Your Nonprofit Workplace in the 'New Normal'

by Robert Kaitz

The COVID-19 pandemic has created immense challenges for nonprofit organizations. As the economy reopens, these organizations must develop a clear, comprehensive plan for optimizing the health and safety of their employees and volunteers. Here are some considerations for reopening safely and ensuring organizational buy-in.

Reopening Policies and Protocols

Nonprofit organizations must diligently monitor local, state and federal laws; advisories; and guidance relating to COVID-19. Staying up-to-date is critical, as rules change frequently and with little notice. Recently enacted laws include office or commercial property capacity limits, mask requirements and mandated office space reconfigurations to maximize social distancing.

Before workplaces reopen, organizations should develop and finalize a comprehensive health and safety plan to address the unique challenges of the pandemic. The plan must comply with applicable laws and follow the ever-evolving status quo on workplace best practices. A plan should include these categories:

Social Distancing and Face Covering

  • Encourage (or mandate) that all employees and volunteers stay six feet apart to the maximum extent possible.
  • Reconfigure the workplace to optimize social distancing (restrict common area access, reorganize workspaces, install physical barriers between workstations, etc.).
  • Encourage (or mandate) that all employees and volunteers wear masks or other appropriate face coverings.

Operations and Training

  • Mandate that employees and volunteers displaying symptoms consistent with COVID-19 stay off premises.
  • Provide training regarding the organization's plan.
  • Formulate a protocol if a presumptive case of COVID-19 at the workplace is reported. By law, the organization must keep the affected employee's identify confidential and, although not mandated by law, should do the same for volunteers.

Hygiene and Cleaning

  • Ensure easy access to sinks and soap or disinfectant, and encourage frequent handwashing and disinfecting.
  • Establish necessary cleaning protocols, such as regularly sanitizing high-touch areas.
  • Implement a plan for cleaning and disinfecting the workplace if a presumptive case of COVID-19 is reported.

Communication

As part of the plan rollout, organizations should communicate clearly and fully with employees and volunteers returning to their premises. Employees and volunteers must understand how the reopened workplace will sharply differ from the pre-pandemic world. Further, they should understand that the organization considers their safety and wellbeing to be paramount.

A sound communication plan ensures that all employees and volunteers work together to optimize the health and safety of the workplace. Practical communication includes:

  • Diligently ensuring that every employee and volunteer knows and fully understands the safety protocols in place. Conspicuous signage, which may be required by law, can supplement effective oral and written communications.
  • Working with supervisory staff to ensure extra attention is paid to safety protocols. Supervisors should take responsibility for ensuring the compliance of their reports and the volunteers they supervise.

Employee Unwillingness or Inability to Return to Work

Understandably, when reopening, nonprofit organizations should expect concerns from some employees about returning to the workplace or to their normal duties. When an employee refuses to return to work, the organization should first consider if he/she can fully perform the job responsibilities through telework. If so, then it may be prudent for the organization to permit the employee's continued telework.

If permitting continued telework is not feasible, then the organization should consider whether the employee is eligible for paid leave under the Families First Coronavirus Recovery Act or other leave of absence. The FFCRA, enacted in March 2020, established up to 12 weeks of paid emergency sick time and paid emergency family and medical leave under certain criteria for employers with fewer than 500 employees (organizations with fewer than 50 employees may be exempt). An employee unable to work due to childcare responsibilities caused by pandemic-related school or daycare closures, for example, is eligible for both types of paid emergency leave.

In addition, an employee with a serious health condition that, as a consequence, places the employee in a high-risk category for COVID-19 complications, may be eligible for an unpaid leave of absence under the Americans With Disabilities Act (for organizations with 15+ employees) or up to 12 weeks of unpaid leave under the Family and Medical Leave Act (for organizations with 50+ employees). Similarly, some employees may live with or care for a higher risk family member. These employees may have legal rights under state and/or federal law, including the right to an extended leave of absence or other creative approaches as an accommodation. Handling these situations requires a thoughtful case-by-case analysis and patience in taking the appropriate steps to avoid potential legal liability.

Additional Risk Management Concerns

Organizations must understand litigation risks arising from potential COVID-19 exposure believed to occur on its premises. A nonprofit, like any business, must take reasonable steps to safeguard all individuals entering its premises.

Employees who believe they contracted COVID-19 in the workplace are barred from suing the nonprofit organization, in most jurisdictions, because the claim is covered exclusively by workers' compensation. This, however, will not protect the organization from lawsuits brought by volunteers who contract COVID-19 on premises.

A surefire approach to prevent these lawsuits is to require volunteers to sign a waiver disclaiming the right to sue the organization if they contract COVID-19 on premises. This will bar suits based on ordinary negligence, although it will not bar claims for grossly negligent or willful conduct in many jurisdictions. The requirement that volunteers sign a waiver, however, may cause a public relations headache or attract bad publicity.

Another approach would be to communicate in writing to volunteers that, although the organization is committed to protecting the safety and health of everyone on its premises, it cannot eliminate all risk, and volunteers who choose to come on site are knowingly assuming a risk of exposure to COVID-19. Further, volunteers in high-risk categories or those concerned about transmission may be encouraged to avoid the organization's premises. This written notice to volunteers can provide evidence that volunteers knowingly assumed a risk of COVID-19 exposure and help insulate the nonprofit organization from liability, although admittedly, it is far from guaranteed to do so.

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