Beyond social distancing: What employers need to know to keep their workplaces safe and manage privacy obligations in the face of COVID-19

COVID-19 architecture building

Employment Alert

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Over the last few weeks, employers have struggled with new and unprecedented challenges caused by the spread of the coronavirus disease 2019 (COVID-19). While numerous companies have transitioned to a remote-workplace mode where possible, many employees are required to continue to report to their worksite. In these cases, employers face the dual challenge of taking steps to keep their employees safe in the workplace while also balancing employee privacy. In this alert we distill recent guidance from the Occupational Safety and Health Administration (OSHA), the Equal Employment Opportunity Commission (EEOC) and the Centers for Disease Control and Prevention (CDC) to help guide employers seeking to protect the health, safety and privacy of their on-site employees.

 

DLA Piper will continue to monitor COVID-19 guidance in this rapidly changing area. Please contact your DLA Piper relationship attorney for the most current information or email us at CoronavirusEmployment@dlapiper.com.

 

What guidance exists to help employers promote workplace safety amid COVID-19? 

 

Under OSHA, employers have a general duty to provide a work environment that is “free from recognized hazards that are causing or likely to cause death or serious physical harm.” Recent CDC guidance provides that all employers need to consider how best to decrease the spread of COVID-19 and lower the impact in their workplace, which may include activities in one or more of the following areas: i) reduce transmission among employees, ii) maintain healthy business operations, and iii) maintain a healthy work environment.

 

OSHA’s recent Guidance on Preparing Workplaces for COVID-19 describes basic steps that every employer can take to reduce the risk of worker exposure to the virus, as well as specific recommendations for employers based on where workers fall on the continuum of exposure risk – four levels from Very High Risk Exposure (healthcare or laboratory personnel interacting with or collecting or handling specimens from known or suspected pandemic patients) to Lower Exposure Risk (employees who have minimal occupational contact with the general public and other coworkers such as office employees).

 

Regarding basic infection prevention measures, OSHA recommends that employers implement measures such as:

 

  • promoting frequent and thorough hand washing, including by providing workers, customers, and worksite visitors with a place to wash their hands with soap and water (or provide alcohol-based (at least 60%) hand rubs
  • encouraging workers to stay home if they are sick
  • encouraging respiratory etiquette, including covering coughs and sneezes
  • providing customers and the public with tissues and trash receptacles
  • establishing policies and practices, such as flexible worksites (eg, telecommuting) and flexible work hours (eg, staggered shifts), to increase the physical distance among employees and between employees and others if state and local health authorities recommend the use of social distancing strategies
  • discouraging workers from using other workers’ phones, desks, offices, or other work tools and equipment, when possible
  • maintaining regular housekeeping practices, including routine cleaning and disinfecting of surfaces, equipment, and other elements of the work environment

In addition, OSHA recommends that employers consider a number of workplace controls, including:

 

  • engineering controls, such as installing high-efficiency air filters; increasing ventilation rates in the work environment; installing physical barriers, such as clear plastic sneeze guards; installing a drive-through window for customer service, etc.
  • administrative controls, establishing alternating days or extra shifts that reduce the total number of employees in a facility at a given time, allowing them to maintain distance from one another while maintaining a full onsite work week; discontinuing nonessential travel to locations with ongoing COVID-19 outbreaks (CDC travel warning levels may be checked regularly at: www.cdc.gov/coronavirus/2019-ncov/travelers); developing emergency communications plans, including a forum for answering workers’ concerns and internet-based communications, if feasible; providing workers with up-to-date education and training on COVID-19 risk factors and protective behaviors (eg, cough etiquette and care of PPE); training workers who need to use protecting clothing and equipment how to put it on, use/wear it, and take it off correctly, including in the context of their current and potential duties
  • safe work practices (a type of administrative control), such as providing resources and a work environment that promotes personal hygiene (eg, tissues, no-touch trash cans, hand soap, alcohol-based hand rubs containing at least 60 percent alcohol, disinfectants, and disposable towels for workers to clean their work surfaces); posting handwashing signs in restrooms
  • Personal Protective Equipment (eg, gloves, goggles, face shields, face masks, and respiratory protection, when appropriate)

The CDC and OSHA also have issued more restrictive guidance for certain industries deemed to be at higher risk of exposure.

 

Importantly, the EEOC has clarified that employers are not prohibited from mandating infection control practices provided such requirements are implemented uniformly and do not discriminate based on protected characteristics.

 

Employers are also encouraged to review the CDC’s interim guidance for businesses, as well as any state, city or county orders relating to COVID-19, which may address health and safety requirements.

 

What can employers do to identify infected employees?

 

OSHA encourages employers to develop policies and procedures for employees to self-monitor for signs and symptoms of COVID-19 if they suspect possible exposure and to report when they are sick or experiencing symptoms of COVID-19. 

 

Recent EEOC guidance also allows employers to take more active steps to identify potentially infected employees during the pandemic. In general, taking an employee’s temperature is a form of medical examination that is significantly restricted under the ADA. However, the EEOC recently updated its Pandemic Preparedness in the Workplace and the Americans with Disabilities Act guidance to provide that employers may measure an employee’s body temperature during the current crisis. Before initiating medical screening, employers should communicate to employees that the purpose of measuring their temperature is to assess them for symptoms of COVID-19 and not for any other purpose. 

 

In addition, employers may consider providing employees with thermometers and requiring employees to take their own temperatures twice a day. If an employee records a fever above 100.4° F [37.8° C] or any other COVID-19 like symptoms, the EEOC recommends that the employer send the employee home.

 

Employers also should be aware of any applicable state requirements. For example, the California Consumer Privacy Act (CCPA) requires covered employers to provide employees with a CCPA-compliant notice before or at the same time it is collecting employee health information. 

 

As with all medical information, the fact that an employee had a fever or other symptoms is subject to ADA confidentiality requirements.

 

To ascertain possible COVID-19 exposure, may employers ask employees information about their personal travel? 

 

EEOC guidance provides that employers may ask employees about recent travel (even if personal) to specific locations to determine if it is safe for them to return to work. Employers should also consult and follow guidance from the CDC and state or local health authorities as it may be advisable to request that employees who visit certain at-risk locations remain at home until it is clear that they do not have COVID-19 symptoms. Employers should be mindful of the need to implement such requests in a non-discriminatory manner.

 

Once an employer has identified infected (or potentially-infected) employees, what steps can employers implement with respect to isolating such employees and protecting the workforce?

 

Once an employer identifies an infected (or potentially-infected) employee, OSHA guidance provides that the employer should be moved to a location away from workers, customers, and other visitors until the potentially sick person can be removed from the worksite. For worksites that lack specific isolation rooms, employers may wish to consider having designated areas with closable doors that can serve as isolation rooms.

 

Employers may also want to consider sending home all employees who worked closely and had direct contact with the infected employee for a 14-day period to ensure the infection does not spread. Before the employee departs, the employer is encouraged to ask the employee to identify all individuals who worked in close proximity (within six feet) with them in the previous 14 day-period.

 

When communicating with employees, the employer should remain mindful of confidentiality requirements under the ADA and any applicable state and/or local privacy or “mini-ADA” laws that limit employers from revealing an employee’s medical information. Employers should not identify the infected employee by name.   Although most employers may not be Covered Entities as defined by HIPAA, they should also be mindful of applicable federal or state laws protecting the privacy of medical records. 

 

The CDC further advises that employers should follow the CDC cleaning and disinfection recommendations if persons suspected/confirmed to have COVID-19 have been in the facility.

 

If an employer learns or suspects that one of its employees has COVID-19, is the employer required to report this information to the CDC or a local health department?

 

There is generally no legal obligation for the employer to report a suspected or confirmed case of COVID-19 to the CDC or to a local health department (although be sure to check the applicable requirements in your jurisdiction). Rather, the particular healthcare provider that receives confirmation of a positive COVID-19 test result is required to report such result to the CDC and/or to a local health department.

 

What COVID-19-related measures may an employer take during the hiring process?

 

After making a conditional job offer, but before the candidate is hired, EEOC guidance provides that an employer may screen job applicants for symptoms of COVID-19, as long as it does so for all entering employees in the same type of job.

 

An employer also may delay the start date of an applicant who has COVID-19 or exhibits symptoms associated with the disease. According to current CDC guidance, an individual who has COVID-19 or symptoms associated with it should not be in the workplace. If an employer needs the applicant to start immediately but the employee has COVID-19 or is exhibiting symptoms, EEOC guidance provides that the employer may withdraw the job offer given the circumstances.

 

If you have any questions regarding the OSHA or EEOC guidance and/or their implications, please contact any member of the DLA Piper Employment group, or your DLA Piper relationship attorney.

 

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