Many states have begun to lift the various shelter-in-place orders their governors imposed to stem the spread of the novel coronavirus, and many other states will be considering doing so in the near future. While recognizing that the workplace will not look the same, employers are preparing to bring their employees back to the workplace and to resume their operations to the extent that state regulations and emergency orders will allow.
There are a number of legal considerations that employers should keep in mind as they begin this process, including policies and procedures related to workplace safety and the health and safety of employees, which are addressed below.
Employers should consider implementing workplace health and safety measures related to physical social distancing, such as alternating work schedules or phased return, as well as providing for protective barriers in open work spaces, allowing for telecommuting, and limiting or closing access to common areas and gathering spaces. In addition, employers should adopt workplace policies requiring frequent hand-cleaning and the use of personal protective equipment, including face coverings, as necessary. Further, employers should consider limiting entry into the workplace by third-parties, including visitors, customers, and vendors.
Employers should also consider policies that address the steps necessary to ensure that the workplace environment itself is routinely cleaned and disinfected by reputable professionals. All efforts to ensure that the physical space remains clean should comply with the latest guidance from the appropriate state and federal health authorities. If employees are responsible for cleaning and disinfecting, employers should make sure they have the necessary personal protective equipment.
At the federal level, guidance is available from the Centers for Disease Control and Prevention (CDC) and the Occupational Safety and Health Administration (OSHA). The Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 from the CDC (updated March 21, 2020) instructs employers on how to prepare their workplaces for a COVID-19 outbreak and explains how to reduce transmission among employees and maintain healthy business operations and healthy work environments. The CDC’s Implementing Safety Practices for Critical Infrastructure Workers Who May Have Had Exposure to a Person with Suspected or Confirmed COVID-19 (updated April 20, 2020) advises on best practices for employers and employees to prevent exposure to or the spread of COVID-19.
OSHA has issued numerous guidance documents to educate employers on how to prepare their workplaces, as well as how to prevent and control the spread of the disease:
It should be noted that employers may be at risk of an OSHA citation if they fail to act reasonably to prevent coronavirus-related risks to employees in the workplace.
Employee Health and Saftey
Testing and Screening
Based on guidance from the CDC and public health authorities, as of March 2020, the Equal Employment Opportunity Commission (EEOC) confirmed that the COVID-19 pandemic meets the “direct threat” standard, which allows employers to use medical testing and disability related questioning to minimize the spread of the disease. As a result, employers should consider implementing testing and health screening procedures for all employees, to be applied in a non-discriminatory manner. The EEOC has concluded that employers will not violate the Americans With Disabilities Act (ADA) by requiring that employees be subject to temperature checks, so long as such checks are related to the job or a business need, such as when employees are in positions in which they will interact with each other, or with customers—in other words, when they present to others.
Employers can also consider diagnostic testing if there is a business necessity for it. Employers are required to use tests that are accurate and reliable, and the best practice is for employers to retain a professional service provider to administer such testing. Employers should ensure that any such provider understands the testing procedures, as well as how to handle confidential medical information and any reporting requirements imposed by law.
The EEOC has also made clear that employers may ask employees questions about symptoms associated with COVID-19 that have been identified by federal and state health authorities, and to ask whether employees suffer from underlying health conditions that may be exacerbated by COVID-19. Employers can consider, for example, using a daily checklist for employees that asks about the symptoms identified by the CDC. Employers should consider appropriate accommodations for employees whose pre-existing conditions place them at greater risk from COVID-19. In recognizing the increase in requests for accommodations, an employer should implement interim measures to enable employees to continue to work.
Prior to announcing temperature checks, a diagnostic testing protocol, or health-related questioning, employers should be sure to develop policies that explain the reason for such checks, testing and questions, and ensure that all these measures will be conducted according to a neutral policy that does not take account of any employee’s identifiable traits or protected personal characteristics, such as race, gender, or sexual orientation. Temperature checks and any testing should be administered in the least invasive way possible. Further, in regard to temperature checks and testing, all results should be treated as confidential medical information and employers should protect such information from any unauthorized access or disclosure.
Further information on testing and screening is available from the following guidance issued by the EEOC:
Employees Sick at Work and Employees Return after Being Sick
Employers should develop policies requiring employees to notify them if they have been exposed to or infected with COVID-19. Further, employers should have policies in place to address the return to the workplace of employees who were out sick with COVID-19, or with an illness whose symptoms are associated with COVID-19. Given that the understanding of the disease and how it spreads is still developing, it is critical that policies reflect the most recent available guidance from the CDC to health care providers and public health officials. At this writing, the CDC’s guidance for individuals who were not hospitalized as a result of COVID-19, but were in isolation due to confirmed exposure to the disease or because they were experiencing symptoms affiliated with COVID-19, discusses symptom-based and test-based strategies for determining when isolation may be ended and the employee may return to work.
Further information on the strategies for determining whether isolation of persons with COVID-19 may be ended is available from the following guidance issued by the CDC:
Discontinuation of Isolation for Persons with COVID -19 Not in Healthcare Settings (updated May 3, 2020).
Finally, employers should develop policies to address situations in which employees who may be exhibiting recognized symptoms of COVID-19 while they are in the workplace. These policies should clearly provide guidance for the employee’s safe exit from the workplace, either to a home or, if necessary, a health care provider, as well as establish protocols for cleaning and disinfecting any areas of the workplace that the employee may have been.
Summary and Next Steps
In addition to guidance from the CDC and EEOC, employers should be mindful of local and state laws, regulations and executive orders and note that these requirements are ever-changing. Employers need to be prepared to adapt quickly to changes in the law; consider, for example, the rapidly changing guidance about face coverings. Further, employers should take steps to ensure that all employees are educated about any new health and safety policies and procedures that have been adopted by their employer to address the novel coronavirus, including the policies and procedures discussed above. Finally, the Employment group at Rubin and Rudman is available to discuss the issues raised in this Client Alert, as well as any other issue of concern to an employer preparing to have employees return to work.
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