Baker Donelson says informed employees will feel safer and more comfortable in this new work environment, as COVID-19 shelter-in-place orders lift.
By Tonya Johnson
Shelter-in-place orders to minimize the spread of COVID-19 are slowly beginning to lift across the United States. But it’s no longer going to be business as usual.
Small business owners, like cosmetic and plastic surgeons, who may be operating on little to no income due to having to temporarily close their doors for several weeks or months, will decide if they can afford to maintain their pre-pandemic overhead or if they’ll need to peel back and let some people go.
Plastic Surgery Practice recently spoke with legal experts from law firm Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, to explore ways for doctors to train returning staff members for a new type of work environment, put anxious minds at ease in relation to infectious disease control, and stay out of legal hassles. The information provided in this article does not, and is not intended to, constitute legal advice; instead, the content is for general informational purposes only. Readers of this article should contact their attorney to obtain advice with respect to any particular legal matter.
“One of the biggest recommendations I have is to document all analyses that the facility conducts with regard to how to protect both employees and patients from virus risks,” says Knoxville, Tenn-based attorney Ashley Meredith Strittmatter. “This written documentation can be provided to OSHA [Occupational Safety and Health Administration] if an inspection or inquiry occurs at a later date to show good faith efforts to comply with the guidance and recommendations from both OSHA and the CDC [Centers for Disease Control] and the employer’s focus on protecting their employees as much as possible.”
“I represent many plastic surgery practices and ambulatory surgery centers who have had cash flow issues due to the restriction on performing elective procedures and surgeries,” says Stuart F. Miller from the Houston, Texas location. “If the practice received money through the [Paycheck Protection] Program, the practice should make sure it maintains the appropriate payroll in order to get loan forgiveness under the CARES Act.”
Before you welcome back staff members and patients, here are some tips and strategies to update your practice.
- Develop (or update) an infectious disease preparedness and response plan. Include a provision that designates a specific person at each location to be responsible for checking for updated OSHA, CDC, and state and local guidance for COVID-19 response regularly and incorporating those recommendations into plans. Train employees on the plan’s contents, focusing on the new items. Train supervisors and managers on their new responsibilities to ensure employees follow new requirements. Consider whether training can be conducted virtually before employees return to work. Whether in person or virtually, document attendance at this training.
- Regularly train employees on updates to plans and guidance. This can be as simple as a morning meeting to go over the plans for the day, update them on any new guidance that has been issued, and /or provide reminders as to critical new requirements such as disinfecting of surfaces, frequent hand-washing, self-monitoring symptoms, reporting of any outside of work exposures, etc. Informed employees will feel safer and more comfortable in this new environment.
- Update your respiratory protection program to identify required respirator usage, particularly if reused, decontamination, or alternative respirators are necessary. Train employees on program updates. Train workers on how to properly use protective clothing and equipment—how to put it on, use/wear it, and take it off correctly. Training materials should be easy to understand and available in appropriate languages and literacy levels for each employee.
- Be flexible in making updates to your plans and programs as you see what works and where additional concerns arise. Listen to your employees when they express concerns. OSHA is already receiving complaints from returning employees who are fearful of their circumstances. Strittmatter says, “While OSHA would not have a specific regulation that they could cite an employer under for ignoring CDC guidance, that would be a situation where they could potentially use a 5(a)(1) citation that requires employers ‘to furnish to each of its employees a workplace that is free from recognized hazards that are causing or likely to cause death or serious physical harm.’”
REDUCING STAFF, LEGALLY
Even with a PPP loan in place, plastic surgeons may still need to reduce staff. “In doing so, they should look to see which employees truly are ‘essential’ to business operations,” Miller says. “Make a list of who they may have to let go.”
To avoid breaking the law in determining layoffs, ask yourself: Are all of the employees to be let go part of the same protected class? For example, Miller says if a practitioner has 10 employees and elects to terminate the five African-American women over 50 while keeping the five white men under 50, the doctor’s motives will be suspect. On the other hand, if the plastic surgery professional has 10 employees and decides to terminate five women over 50, but the five remaining employees are also women over 50, it is more likely to be within the bounds of the law.
Do you want to eliminate employees who have had performance issues in the past? Some employers have noted that they were willing to put up with some performance issues in the past that are no longer tolerated when times are tough, Miller reports. Under those circumstances, he implores the doctor to have documented the issues in the past and any prior warnings, as well as the performance issues that remain an issue now that COVID is forcing you to make cuts. “There is not a firm set of guidelines, but rather it is a question of what is defensible,” Miller says. “Be careful as to what you print—do not put anything in an email that you are not prepared to see as an exhibit in trial.”
Tonya Johnson is associate editor of Plastic Surgery Practice.