April 14, 2020

The COVID-19 pandemic has created a number of logistical and financial headaches for employers, not the least of which is how to comply with duties to keep their employees safe.  The maze of federal laws governing health and safety may cause many employers to be fearful of unknowingly acting in a manner that is violative of these laws. Below is a brief summary of guidance provided by the governing agencies that will assist employers in making informed decisions when deciding how to protect their employees and comply with the law. Employers should review all the categories, as compliance with one does not ensure compliance with another.

1. CDC Guidance

When an employer has a positive case of COVID-19 in the workplace, the Centers for Disease Control and Preventions (“CDC”) has recommended that the employer promptly inform fellow employees of their possible exposure to COVID-19, but maintain confidentiality as to the identity of the infected employee as required by the Americans with Disabilities Act (“ADA”). To the extent possible, the employer should ask the infected employee to create a list of employees, clients, vendors, etc. who may have been exposed to the virus. The employer should then recommend that exposed persons and co-workers self-monitor for symptoms (e.g., fever, cough, or shortness of breath). Additional CDC Guidance may be found here.

The workplace itself must also be addressed by employers.  The CDC has issued some guidance regarding cleaning and disinfection practices in the workplace, which can be found here.

2. Employer responsibilities under the Americans with Disabilities Act and EEOC Guidelines

The Americans with Disabilities Act (“ADA”) prohibits an employer from making disability-related inquiries and requiring medical examinations of employees, except under limited circumstances, including where an employee poses a “direct threat” to the health or safety of the individual or others (without a reasonable accommodation).

U.S. Equal Employment Opportunity Commission (“EEOC”) has determined that the COVID-19 pandemic meets the direct threat standard. During the COVID-19 pandemic the EEOC has advised that employers are permitted to do the following:

  • Send employees home if they have COVID-19 symptoms;
  • Ask employees who call in sick about their symptoms, including, for example, fever, chills, cough, shortness of breath, or sore throat;
  • Measure employees’ body temperatures, with the caveat that if an employee has a fever or other symptoms, the ADA confidentiality requirements will apply;
  • Follow the advice of the CDC, and local health authorities regarding whether to allow employees who have returned from travel (both work and pleasure) to return to the workplace;
  • Encourage employees to telework; and
  • Require employees to wash their hands often and/or wear personal protective equipment (including masks).

While the EEOC does not specifically address whether coworkers or customers can be informed of a positive case of COVID-19, it may be appropriate to do so, as long as the employer can ensure the confidentiality of the infected employee. Click here to review the EEOC’s guidelines regarding Pandemic Preparedness in the Workplace and the Americans with Disabilities Act, which has been updated to address issues specifically related to the COVID-19 Pandemic.

In addition, the EEOC has encouraged employers to review their recently updated guidance, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.

3. Employer responsibilities under OSHA

As employers know, the Occupational Safety and Health Act (“OSHA”) requires that employers provide safe and healthful workplaces for their employees. OSHA also requires that workplace illnesses be reported to the agency. On February 10, 2020, OSHA issued guidance to employers providing that COVID-19 cases need not be reported to OSHA as workplace illnesses, unless:

a. Employees are workers in the healthcare industry, emergency response organizations (e.g., emergency medical, firefighting, and law enforcement services), and correctional institutions whereby employers must continue to make work-relatedness determinations pursuant to 29 CFR § 1904; or

b. There is objective evidence that employee’s COVID-19 case may in fact be work-related.

Click here to review OSHA’s Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19).

Worth noting, OSHA prohibits employers from retaliating against workers for raising concerns about safety and health conditions. OSHA urges employers to review its publication, Recommended Practices for Anti-Retaliation Programs.

About the Author: Meaghan Kramer assists clients with employment law and commercial litigation matters. Meaghan is advising clients on workplace related legal issues arising from COVID-19. Meaghan writes about employment issues, including safeguarding workplace confidences, and creating work environments that are free from discrimination and harassment. mkramer@eblawyers.com | 602.222.4995

Disclaimer: This article is not legal advice and is only for general, non-specific informational purposes. It is not intended to cover all the issues related to the topic discussed. If you have a legal matter, the specific facts that apply to you may require legal knowledge not addressed by this article. If you need legal advice, consult with a lawyer.