As businesses begin to plan for the future, reopen their doors to employees and customers and make adjustments to the new normal brought on by the coronavirus pandemic, employers will certainly face logistical and legal challenges that they have never seen before. We recently co-hosted a webinar on this week’s newsletter topic “Considerations for Employer’s as Businesses Re-open” with the incredible and knowledgable team at Proskauer. This is a link to the recorded version of the webinar.
Returning to the Office:
This week’s newsletter summarizes things to keep in mind as employers strategize and plan for returning to work. The purpose of these considerations is to provide guidance to employers to help ensure the workplace is in compliance with the General Duty Clause of the OSHA Act which requires that employers provide employees with a workplace that is free from recognized hazards.
Fever is a well known symptom of coronavirus, and businesses may choose to temperature screen their employees in order to prevent a virus outbreak within the workplace. It is important to keep in mind that not all COVID-19 cases present with symptoms (ie: may not present with elevated temperature), thus temperature screening will not completely eliminate the risk of the virus entering the workplace. While the American’s With Disabilities Act places limitations on employers requiring medical examinations of employees, the Equal Employment Opportunity Commission (EEOC) announced that temperature screening as it relates to COVID-19 is permissible. However, employers who choose to implement any temperature or medical screenings as a COVID-19 prevention measure should consult legal counsel and monitor CDC, local health department, and EEOC guidance as this could change when Coronavirus no longer presents a “direct threat”.
- Employers are allowed to deny any employee with a fever entry into the workplace, as well as deny entry for those employees who refuse to have their temperature taken.
- Employers who implement temperature screening as a prevention measure should be sure to consider testing logistics including privacy and social distancing, and “subject all employees in the same job category to the same testing and screening requirements to avoid potential disparate treatment claims.”
- It’s suggested that temperature checks be conducted by a medical professional. If not possible, by a member of human resources or someone in a similar role.
- All medical information must remain confidential and be stored in a separate medical file from the employee’s personnel file, in accordance with the ADA.
Another screening tool that will only be permissible for the duration that the EEOC declares COVID-19 a “direct threat” is diagnostic testing to determine if an employee has coronavirus. Employers choosing to implement this should consider privacy and confidentiality concerns similar to that of temperature taking, and consult guidance from the CDC, FDA and other public health agencies to ensure accuracy and reliability of such testing. It is important to keep in mind the possibility of false-positive and false-negative results as well. Antibody testing is another screening tool to determine if an employee has the antibodies, indicating that they’ve already had the virus, however the CDC recommends against using antibody testing results to make decisions on employees returning to work. It’s also important to note that the EEOC has not directly addressed whether antibody testing is permissible.
A questionnaire is an additional tool that can be used to identify employees who may be at higher risk of bringing coronavirus into the workplace. Not all coronavirus cases present with symptoms, thus some of the measures mentioned above (temperature screening) may not be enough to prevent the virus from entering the workplace. If an employer does not plan to implement diagnostic testing, but does wish to implement another strategy, they may consider requiring employees to complete questionnaires asking them to “report whether they have tested positive for COVID-19, experienced COVID-19 symptoms, believe they have been exposed to someone who has tested positive, and/or have any other reason to believe that they may have been exposed to the virus.” This may only be permissible for as long as COVID-19 poses a direct threat, as these questionnaires may solicit employee medical information. Additionally, any questionnaires should remain confidential and considered a medical record, separate from an employees personnel file.
Social Distancing in the Workplace:
Employers should begin thinking about how they will reduce the density of employees in the workplace at a given time, and how social distancing guidelines will be adhered to. Closely monitoring local orders is one way to ensure compliance, as different jurisdictions will have different executive orders and guidelines in place. Employers should consider which visitors, if any, will be permitted into the workplace and under what conditions. Some strategies may include reconfiguring physical workspaces and constructing physical barriers between work areas.
The CDC suggests the following social distancing guidelines:
- Implementing flexible worksites (e.g., telework)
- Implementing flexible work hours (e.g., staggered shifts)
- Increasing physical space between employees at the worksite
- Increasing physical space between employees and customers
- Implementing flexible meeting and travel options (e.g., replacing in-person meetings with virtual ones)
- Downsizing operations
- Delivering services remotely (e.g., phone, video, or web)
- Delivering products through curbside pick-up or delivery
Additional Safety Measures:
All employees whom are sick should be required to stay home, consult with their healthcare provider and adhere to quarantine guidelines. Employees who are not sick but who live with someone who has been diagnosed with COVID-19 or someone who has COVID-19 symptoms should be asked to inform their supervisor, and follow CDC and local guidelines. Employers should also instruct employees to practice healthy hand hygiene, cover coughs and sneezes with a tissue, avoid close contact with people who are sick and avoid touching face, nose, mouth and eyes with unwashed hands.
Employers should also consult Occupational Safety and Health Administration (OSHA) guidance to determine if employees should wear personal protective equipment (PPE) in the workplace. Some States and localities now require that in person workforces wear face masks and gloves. Employers may be required to post notices about these requirements, implement policies, and/or provide these items at the employers’ expense.
Other Practical Steps Employers Can Take:
- Conduct remote training for employees on recognizing symptoms, and on best workplace practices and policies
- Provide hand sanitizer, disinfectant, and no-touch trash cans
- Routinely clean and disinfect frequently touched objects and surfaces
- Place signs in restrooms and eating areas encouraging hand washing
- Encourage non-contact methods of greeting as an alternative to hand shaking
- Prohibit employees from using other employees’ desks, offices, and equipment
Developing a Response Plan if an Employee Tests Positive for COVID-19:
Employers should be prepared for if an employee is diagnosed with COVID-19 upon re-opening.
- Communicate with the infected employee to obtain information about when they may have been exposed to the virus and who they have come into contact with in the office since then. Employees at that location should be informed, and if any specific employees may have been in close contact with the infected employee, inform each employee of potential exposure separately, without disclosing the name of the infected employee.
- If someone in the workplace is diagnosed with COVID-19, consider whether the office needs to be closed and disinfected. At minimum, close and clean the areas in which the infected employee works or has visited.
- Coronavirus is reportable to OSHA when an employee is infected in the workplace. If the employee is hospitalized, a report must be made within 24 hours, and if an employees dies, a report must be made within 8 hours. Phase 1 employers in NY must notify the state and local health departments of positive results at their site.
- Consider OSHA recording obligations, and consult with the CDC and state/local guidance on returning employees to work