Lewis Roca Blog

Following Nevada Governor Steve Sisolak’s March 17, 2020 directive to close all non-essential businesses, Nevada gaming establishments ceased operations and sent all employees home. While there is no firm timeline for the reopening of Nevada’s gaming businesses currently, news that Governor Sisolak is easing some restrictions effective May 1, 2020 may indicate that reopening is on the horizon. Human Resource professionals, business owners, and leaders should use this time to prepare policies and protocols to ensure they can return employees to a safe and healthy workplace when they receive the Governor’s approval to re-open. This article seeks to provide Nevada gaming establishments with several topics to consider when crafting policies and protocols for bringing employees back into the workplace during the ongoing pandemic.

A Slow Approach

Governor Sisolak has indicated that he intends to gradually reopen Nevada’s economy in phases relative to the White House’s three-phased Guidelines to Opening Up America Again. In keeping with this approach, employers should consider bringing employees back into the workplace in phases or on alternating days of the week, gradually easing into a full ramp-up of operations. This practice will ensure that there are not too many employees in the workplace at any one time. Decisions as to who is to return to the workplace, and when, should be based upon business needs. Employees in positions that must be performed at the workplace should naturally be the first groups to return to work. Employees in positions within the hotel or casino suited for telework should be allowed to continue to work from home. As businesses slowly reopen, additional groups of employees can be phased into the workplace or resume normal work weeks until businesses return to full capacity in keeping with governmental guidance. Importantly, employers should make certain that any return-to-work protocols are implemented in a fair and non-discriminatory manner.

During the first two return-to-work phases, the White House advises “all vulnerable individuals” to continue to shelter-in-place and notes that “Members of households with vulnerable residents should be aware that by returning to work, where distancing is not practical, they could carry the virus back home.” The guidance also encourages employers to “Strongly consider special accommodations for personnel who are members of a vulnerable population.” Therefore, in bringing employees back to work, consideration should be given to whether an employee is more vulnerable to the disease and whether he or she employee lives with a vulnerable individual. These employees may request, and the employer should consider, allowing them to return to work in the latter phases of reopening. Depending upon the reason for the request, the employer may need to engage in the interactive process under the Americans with Disabilities Act (“ADA”) and state law. The EEOC recently provided updated guidance on reasonable accommodations during the COVID-19 pandemic, a summary which can be found here.

Providing a Safe and Healthy Work Environment

A primary consideration for employers in bringing employees back to the workplace is the safety and well-being of its employees. The Occupational Safety and Health Act requires employers to provide employees with a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm” to employees. 29 U.S.C. § 654(a)(1). The Occupational Safety and Health Administration (“OSHA”) advises employers to conduct an initial risk assessment and take appropriate precautions to protect employees based upon that assessment, noting most workers will likely fall in the lower or medium exposure risk levels. OSHA’s published guidance on this risk assessment can be found here.

At all risk levels, employers should continue to adhere to Centers for Disease Control (“CDC”) guidelines to minimize employee exposure to COVID-19 and provide a healthy work environment:

Social Distancing:

At this time, the CDC advises the public to continue practicing social distancing and to avoid group gatherings.

• Employee/Employee Contact: Employers should limit the number of people in a work area, break room, bathroom, elevator, or cafeteria at any one time. Staggered shift changes and break schedules may prevent too many employees congregating in the same area. In close quarters such as hallways and entrances, employers may consider designating hallways and entrances as one-way only, to the extent feasible. Shared workstations should be discouraged and employees should be physically separated by 6 feet of distance when possible.

• Employee/Patron Contact: Employers should structure the casino floor and other public areas to increase the physical distance between employees and patrons. Guest registration desks, casino cages, and other areas with high public contact may need to be fitted with Plexiglas or clear acrylic barriers. The employer should limit the number of staff having direct contact with the public and consider temporarily transferring employees to another position requiring less public contact unless there is an employment agreement prohibiting such reassignments or a collective bargaining agreement that applies.

Good Hygiene and Sanitation Practices:

In the workplace, employers should encourage good hygiene practices in accordance with CDC guidelines including:

• Engaging in frequent and thorough handwashing with soap and water at regular intervals. Signs should be posted encouraging frequent handwashing.
• Use of alcohol-based hand sanitizer (containing at least 60% alcohol) when hand washing is not available. The employer should provide access to hand sanitizer near employee workstations and in common areas.
• Engaging in proper respiratory etiquette in covering coughs or sneezes.
• Wearing face masks. Employees in direct contact with the public should be provided with and asked to wear a face mask. If employees decline to wear a face mask for medical reasons, employers should engage in the interactive process with such employees as required by the ADA and state law.
• Wearing other Personal Protective Equipment (“PPE”) consistent with governmental guidance based upon job duties and contact with the public or infected surfaces. Employers should provide employees with the necessary PPE.
• Avoid handshakes or other physical contact and encourage use of non-contact methods of greeting.

Employers should also implement increased cleaning and sanitizing of frequently touched surfaces in the workplace such as door handles, time clocks, elevator panels, handrails and gaming devices.

Employees should be discouraged from using other employee workstations including phones, keyboards, desks, and work instruments or if not feasible, be required to sanitize the workstation after each use.

Patrons and employees should be provided with tissues and no-touch trash receptacles.

Employee Screenings and Temperature Checks:

On April 23, 2020, the Equal Employment Opportunity Commission (“EEOC”) issued updated guidance stating employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. Consistent with this guidance, an employer may consider doing the following for employees physically entering the workplace:

• Administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus. Employers should ensure the tests are accurate and reliable by following state and federal guidance in the safe and accurate administration of tests.
• Conduct temperature screenings of employees entering the workplace and maintain a confidential log of the results.
• Ask employees physically entering the workplace whether they have COVID-19 or symptoms of COVID-19 as those symptoms are identified by the CDC or public health authorities (e.g., fever, cough, loss of smell or taste, or shortness of breath). It is also permissible to ask employees if they have been tested for COVID-19 and if they have had contact with anyone who has been diagnosed with COVID-19 or who has symptoms of the disease.

Employers should make certain that all screenings are implemented in a fair and non-discriminatory manner.

Any medical information obtained during this process must be kept confidential and kept separately from the employee’s personnel file. Should an employee refuse to answer the above health questions or submit to testing, the EEOC advises that an employer may bar those employees from physically entering the workplace. To gain the cooperation of the employee, employers may wish to ask about the reasons for the refusal and if necessary, explain that such steps are being taken for the safety of everyone in the workplace and reassure the employee that information will remain confidential and protected.

Employees with a fever of 100.4 degrees or higher or who have symptoms of the disease should be sent home. In addition, employees with COVID-19 should be advised to follow CDC recommended steps. Specifically, they should not return to work until the criteria to discontinue self-quarantine or isolation are met, in consultation with healthcare providers and state and local health departments. Sick leave in accordance with the employer’s leave policy or otherwise required under Nevada’s new paid leave law should be provided. Consideration should be given to implementing flexible leave policies in light of the pandemic and the many challenges it presents for families. For employers having less than 500 employees, leave may be available under the Families First Coronavirus Response Act.

Employers should be aware that while the EEOC allows employers to conduct these screenings, federal guidance does not address potential wage and hour issues as to whether the time spent for employee screenings is compensable. Employers should consult employment counsel before implementing and when crafting policies concerning these screenings.

Conclusion

Workplaces will certainly look and feel different as employers adjust to new rules and norms about social distancing, reducing workplace density, and preventing the spread of germs. The above considerations and suggestions should provide a general framework to assist the employer in thinking about and creating policies clearly outlining the employer’s requirements for a returning workforce. The employer should provide employees with training on its policies as well as recognizing COVID-19 symptoms, proper adherence to hygiene, use of PPE, and safety protocols. These policies may allow for the employer to discipline employees who intentionally or recklessly violate the employer’s policies and put the health and safety of fellow employees and the public in danger. Employers, however, are cautioned to avoid creating policies relating to employees’ off-duty conduct and disciplining employees on that basis without consulting employment counsel as such policies may violate the National Labor Relations Act.

The above considerations are based upon information currently available. Employers must stay up to date and monitor developments of the COVID-19 pandemic, including new guidance from federal, state and local officials as well as public health authorities and modify procedures, policies, and protocols accordingly.

If you would like to discuss any of the issues raised in this article or obtain legal advice in regard to labor and employment matters and creating return-to-work policies, please contact authors Howard Cole at HCole@lewisroca.com or Jennifer Hostetler at jhostetler@lewisroca.com.

This material has been prepared by Lewis Roca Rothgerber Christie LLP for informational purposes only and is not legal advice. Specific issues dealing with COVID-19 are fluid and this alert is intended to provide information as it is currently available. Readers should not act upon any information without seeking professional legal advice. Any communication you may have with a Lewis Roca Rothgerber Christie LLP attorney, through this announcement or otherwise, should not be understood by you to be attorney-client communication unless and until you and the firm agree to enter into an attorney-client relationship.