In the past month many employers have been forced to learn to manage the COVID-19 threat while continuing operations. Employers that shut down operations are going to be confronted with the same challenges, as they prepare to reopen once government ordered lockdowns are lifted. This alert addresses some recent guidance and regulations issued under federal law. While such guidance and regulations do provide some clarity on how employers on a going forward basis may comply with certain laws providing certain protections to workers in respect of COVID-19, laws have yet to be enacted to in turn provide safe harbors that would protect employers under certain circumstances from liability for COVID-19 employee and customer infections should they elect to reopen. Until such laws are enacted, employers remain anxious about reopening their businesses and an expected onslaught of COVID-19 related lawsuits by the plaintiff’s bar.
Record Keeping Requirements for Non-healthcare related Employers
As many employers may already be aware, OSHA considers COVID-19 to be a recordable illness to be included on their OSHA Form 300 log.
OSHA’s most-recent guidance states that, until the agency notifies employers otherwise, all employers -except emergency response organizations, correctional institutions or those in the healthcare industry- are not required to record cases of COVID-19 unless:
- There is objective evidence that a COVID-19 case may be work-related; and
- That evidence was reasonable available to the employer.
Objective evidence would exist if, for example, cases occur in a cluster of employees who work closely together, with no alternative explanation. Such objective evidence is deemed to be “reasonably available” if employees provided information to the employer or the employer learns information regarding its employees’ health and safety during the ordinary course of managing its business.
EEOC Updated Guidance on COVID-19 Matters
- Testing and Medical Exams
The EEOC confirmed that, during the time of the current pandemic, employers may ask employees who call in sick if they are experiencing COVID-19 related symptoms as identified by public health authorities.
Additionally, employers may require employees to submit to body temperature testing prior to entering the workplace. The EEOC requires that employers who choose to implement testing do not do so in a discriminatory way (i.e. either test all employees, symptomatic employees, or certain classes of employees based on objective criteria).
- Confidential Medical Information
When there is exposure in the workplace, care must be given when informing non-infected employees of potential health risks without disclosing the names of the employees who have been diagnosed with COVID-19. This rule appears to be relaxed in certain respects. For example, the EEOC now states that contractors and staffing agencies may disclose the identity of an employee with COVID-19 if that employee was placed in another employer’s worksite. Additionally, names of infected employees may also be disclosed to public health agencies after receiving notice of positive COVID-19 diagnosis.
Employers must keep all confidential medical information (including employee temperature logs) in a confidential file that is separate from an employee’s personnel file.
- Requiring workers to wear personal protective gear
An employer may require employees to wear protective gear such as masks and gloves (to the extent not already required by state or local law), however, reasonable accommodations as to the type of protective gear should be given upon request of a disabled employee. For example, non-latex gloves or a loosely fitting cloth face covering.
COVID-19 Preparedness Response Plan
Many states have followed OSHA in requiring employers develop a written COVID-19 Response Plan to be kept at all office locations and assessable to employees.
OSHA has issued guidance on drafting such a plan. Some important information to be addressed in the plan include:
- Informing employees of the symptoms of COVID-19 and how it spreads;
- Setting forth steps that an employer is taking to reduce employees’ risk of exposure to COVID-19;
- Adopting policies to implement basic infection prevention measures;
- Developing policies and procedures for prompt identification and isolation of sick people;
- Addressing policies associated with leave and remote working arrangements; and
- Implementing workplace controls to control the spread of COVID-19 internally.
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This alert should not be construed as legal advice or a legal opinion on any specific facts or circumstances. This alert is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. The contents are intended for general informational purposes only, and you are urged to consult your attorney concerning any particular situation and any specific legal question you may have. We are working diligently to remain well informed and up to date on information and advisements as they become available. As such, please reach out to us if you need help addressing any of issues discussed in this alert, or any other issues or concerns you may have relating to your business. We are ready to help guide you through these challenging times.