How Employers Should Respond to Risks of Workplace Exposure to COVID 19

Posted by Attorney David McClurg in COVID-19 / Comments

ADA and OSHA rules continue to apply during the COVID 19 pandemic, but they do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state/local public health authorities about steps employers should take regarding this virus. The following discussion addresses the applicability of those rules and the CDC Guidelines to issues being faced by employers during the pandemic, including employer responses to employees who have been in contact with someone who has a presumptive positive case of COVID-19.

The ADA does not:  

• Prohibit an employer from instructing employees that they must notify the employer if they have been exposed to, have symptoms of, and/or have tested positive for the COVID-19 coronavirus. 
• Prohibit an employer from requiring any employee who becomes ill at work with COVID-19 coronavirus symptoms to notify their supervisor, or from sending such employees home. Employees who are suffering from symptoms should be directed to remain at home until they are symptom-free for at least 24 hours.
• Prohibit an employer from asking employees who calls in sick if they are experiencing symptoms of the pandemic virus. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.
• Prohibit an employer from taking the body temperature of employees during the COVID-19 pandemic. Note, however, that some people with COVID-19 do not have a fever, and that the employer must take steps to minimize the risk of infection to those taking the employees’ temperature.
• Prohibit an employer from requiring employees to stay home if they have symptoms of the COVID-19.
• Prohibit an employer from requiring that employees returning to work provide doctors' notes certifying their fitness for duty. (Though the CDC suggests forgoing this requirement in light of the anticipated stress the pandemic will place on healthcare providers.) 
• Prohibit an employer from screening applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job. 
• Prohibit an employer from taking an applicant's temperature as part of a post-offer, pre-employment medical exam. Again, however, you must protect the individual who is taking the temperature from reasonably anticipated hazards and risks to which those individuals may be exposed.
• Prohibit an employer from delaying the start date of an applicant who has COVID-19 or symptoms associated with it. 
• Prohibit an employer from withdrawing a job offer when it needs the applicant to start immediately but the individual has COVID-19 or symptoms of it.

What Should Employers Do When Employees Report

COVID 19 Symptoms or Exposure to Others with Such Symptoms?

According to the CDC Guidelines:

Separate sick employees and encourage them to stay home:

• Employees who appear to have symptoms (i.e., fever, cough, or shortness of breath) upon arrival at work (or call in reporting such symptoms) or who become sick during the day should: a) immediately be separated from other employees, customers, and visitors; b) be sent home; c) be advised to seek medical evaluation and advise the employer if they have a confirmed COVID 19 infection; and d) stay at home until the criteria to discontinue home isolation are met, in consultation with their healthcare providers. Note: The Equal Employment Opportunity Commission (EEOC) has confirmed that advising workers to go home is permissible and not considered “disability-related” if the symptoms present are akin to the COVID-19 coronavirus or the flu.
• If an employee is confirmed to have a COVID-19 infection, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace, but maintain confidentiality of the identity of the infected employee as required by the ADA. The fellow employees should then self-monitor for symptoms (i.e., fever, cough, or shortness of breath). Employers should advise any fellow employees who may have been in contact with the infected employee that they should consider contacting their healthcare provider if they exhibit any signs/symptoms of infection. Employers have no obligation to report a suspected or confirmed case of COVID-19 to the CDC. The healthcare provider that receives the confirmation of a positive test result is a mandatory reporter who will handle that responsibility.
• Perform enhanced cleaning and disinfection pursuant to CDC cleaning and disinfection recommendations after persons suspected/confirmed to have COVID-19 have been in the facility.

Note: Some counsel recommend that employers go further than the CDC and OSHA recommendations, and suggest that when an employee has a confirmed or suspected case of COVID-19 or has even come into contact with someone who has a presumptive positive case of COVID-19, the employer should:

a)  send the employee home and recommend that they be tested;

b)  before the employee departs, ask them to identify all individuals who worked in close proximity (three to six feet) with them in the previous 14 days;

c)  send home all employees who worked closely with that employee in the previous 14-day period of time – but without identifying the name of the potentially infected employee;

d)  inform building management so they can take whatever precautions they deem necessary;

e)  communicate with customers and vendors that came into close contact with the employee to let them know about the potential of a suspected case; and

f)   close off areas used by the ill persons and wait as long as practical before beginning cleaning and disinfection to minimize potential for exposure to respiratory droplets.

Despite these recommendations from some law firms, I have found no governmental guidance or regulations that require employers to send asymptomatic employees home based solely on their potential exposure to the COVID 19 virus.

Employees cannot refuse to come to work based solely on their fear of infection.

Under OSHA, employees are only entitled to refuse to work if they believe they are in imminent danger. Imminent danger involves a threat that could result in death or serious physical harm within a short time. Most work conditions in the United States do not meet the elements required for an employee to refuse to work under this OSHA standard. However, if high risk employees are directed by their health care provider to self-quarantine at home to avoid the risk of infection, it would appear inappropriate to discipline them, and discipline in such circumstances might give rise to a retaliation claim under the recently passed Families First Act, which appears to provide for emergency paid leave under such circumstances.

What Should Employers Do To

Reduce the Risk of Exposure to COVID 19 in the Workplace?

Consider establishing policies and practices for social distancing.

Social distancing is required under Governor Evers’ “Safer at Home” Order. Social distancing means avoiding large gatherings and maintaining distance (approximately 6 feet or 2 meters) from others when possible (e.g., breakrooms and cafeterias). Strategies that business could use include:

• Implementing flexible worksites (e.g., telework)
• Implementing flexible work hours (e.g., staggered shifts)
• Increasing physical space between employees at the worksite
• Increasing physical space between employees and customers (e.g., drive through, partitions)
• Implementing flexible meeting and travel options (e.g., postpone non-essential meetings or events)
• Downsizing operations
• Delivering services remotely (e.g. phone, video, or web)
• Delivering products through curbside pick-up or delivery

Consider improving the engineering controls using the building ventilation system. This may include some or all of the following activities:

• Increase ventilation rates.
• Increase the percentage of outdoor air that circulates into the system.

Support respiratory etiquette and hand hygiene for employees, customers, and worksite visitors:

• Provide tissues and no-touch disposal receptacles.
• Provide soap and water in the workplace. If soap and water are not readily available, use alcohol-based hand sanitizer that is at least 60% alcohol. If hands are visibly dirty, soap and water should be chosen over hand sanitizer. Ensure that adequate supplies are maintained.
• Place hand sanitizers in multiple locations to encourage hand hygiene.
• Place posters that encourage hand hygiene to help stop the spread at the entrance to your workplace and in other workplace areas where they are likely to be seen.
• Discourage handshaking – encourage the use of other noncontact methods of greeting.
• Direct employees to visit the coughing and sneezing etiquette and clean hands webpage for more information.

Perform routine environmental cleaning:

• Routinely clean all frequently touched surfaces in the workplace, such as workstations, keyboards, telephones, handrails, and doorknobs.
• Discourage workers from using other workers’ phones, desks, offices, or other work tools and equipment, when possible. If necessary, clean and disinfect them before and after use.
• Provide disposable wipes so that commonly used surfaces (for example, doorknobs, keyboards, remote controls, desks, other work tools and equipment) can be wiped down by employees before each use.