As employers begin re-opening their businesses, they must plan, prepare, and respond to the ongoing threat of COVID-19 to ensure a safe workplace for their employees. How employers respond to the COVID-19 pandemic could minimize their potential for future liability.
The Occupational Safety and Health Act (“OSHA”) requires employers to provide safe working conditions for their employees. Employers have a general duty to provide employment, and a place of employment, that is free from recognized hazards that may cause death or serious physical harm to employees. COVID-19 is a recognized harm that can cause death or serious harm and is transmitted from close personal contact, posing the issue of whether any workplace right now meets this OSHA requirement. OHSA has responded with a set of guidelines and the standard that employees must act in a reasonable manner in providing a safe workplace during the pandemic.
The Equal Employment Opportunity Commission (“EEOC”) enforces anti-discrimination laws in the workplace which includes the Americans with Disabilities Act (“ADA”). The EEOC has addressed the ability of employers to engage in medical examinations (i.e. temperature checks and screenings) to determine if an employee has COVID-19 symptoms and poses a direct threat to the workplace. The ADA prohibits employers from requiring medical examinations that are not job related or part of a business necessity. However, due to unprecedented times, the EEOC has allowed medical examinations and COVID-19 testing as suggested by the Center for Disease Control (“CDC”) under the direct threat exception. The direct threat exception creates a defense against future liability when there is a significant risk of substantial harm to the health or safety of that employee or others. The defense shields employers who must take into account an employee’s disability or health to protect other employees from significant danger. The ADA states COVID-19 testing is “job related and consistent with business necessity” and that employees with COVID-19 pose a direct threat to the health of others. The ADA’s direct threat requirement is a high standard and employers must use the most current medical knowledge and/or the best available objective evidence to determine if an employee is a direct threat. Employers should rely on the CDC, other public health authorities, and reputable medical sources as a guide for choosing which questions to ask employees to determine whether the employee is a direct threat. The medical examinations must be in response to COVID-19 and the EEOC suggest that they be reasonably accurate and reliable. Additionally, all medical information including COVID-19 symptoms and positive test results must remain confidential. Employers should limit the disclosure of the identity of confirmed cases to only those who need to know and necessary health authorities. Overall, employers must ensure that all workplace policies and procedures are implemented in a non-discriminatory manner and that medical information is maintained in a confidential manner.
The CDC, EEOC, and OSHA have provided specific guidelines on how businesses should return to work. These guidelines are to ensure the prevention and the slowing down of the transmission of the virus. First, employers should consider the level of disease transmission in their local community to determine if returning to the office is a good idea. Additionally, employers must check the local government rules for re-opening to ensure compliance. Employers should also conduct a risk assessment of their worksite to determine the potential for employee exposure and a determination of which individuals are the most at risk. Finally, each business should develop a plan that is specific to the needs of their workplace and its employees. Many companies have created an internal team with members from various departments to handle their return to work protocol. Some general return to work COVID-19 policy guidelines include:
- Educate employees on the COVID-19 workplace policy and provide open and frequent communication on COVID-19 guidelines
- Implement a phasing schedule for returning to work and consider staggered schedules
- If possible, encourage remote work as well as video conferences or teleconferences instead of in-person meetings
- Actively encourage sick employees to stay home. Provide lenient work leave policies
- Conduct daily health checks and routine workplace cleaning
- Assess where and how an employee may be expose to COVID-19
- Maintain social distancing and require face masks to be worn
- Limit communal areas and restrict the use of shared equipment
- Promote general hygiene including frequently washing hands and covering coughs and sneezes
- Limit business travel and discourage the use of public transportation
- Provide sanitizing stations and cleaning supplies
- Provide special accommodations for high risk employees
- If an employee has symptoms, isolate the employee. If an employee is suspected or confirmed to have COVID-19 follow the CDC guidelines for disinfecting the workplace, determine other employees who may have been exposed, and isolate exposed employees
Employers must act in a responsible and reasonable manner for re-opening their business. Complying with CDC, EEOC, and OSHA guidelines, as well as local and state requirements will help keep employees healthy and reduce the potential for future employer liability.
Our Labor and Employment attorneys can answer any questions you may have regarding employees returning to work or your return to work policies. Contact us today.