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Considerations for Employers with Regard to COVID-19 and the Safety of Employees and the Public

 

The COVID-19 outbreak has greatly impacted the workplace in terms of employee safety as well as the safety of customers, clients, and other visitors.

Patrick Van Zanen

 

Shar Bahmani

 

Joe Keene

 
     

Indeed, we are in uncharted waters. What should employers do proactively in an effort to keep their workplaces safe, and what should be done if an employee tests positive or is suspected of having COVID-19? The following broadly addresses some of those considerations.

WORKPLACE SAFETY

The safety of employees and the public is of paramount importance, and employers should confer with their landlords and property managers on these matters to ensure COVID-19-related safety is adequately addressed.

In the interest of immediate safety and limiting one’s liability, employers may assume initial responsibility for proactive measures, and the rights and obligations under any applicable lease or management agreement will have to be sorted out later.

See OSHA/DOL Guidance on Preparing Workplaces for Coronavirus.

OVERVIEW OF RECOMMENDATIONS FOR EMPLOYERS

  1. Routinely consult local public health agencies and the U.S. Centers for Disease Control and Prevention (CDC) for the most up-to-date guidance. The CDC (CDC Coronavirus) and World Health Organization (WHO Coronavirus) frequently update their websites with useful information and advice for businesses. Local health authorities provide relevant COVID-19 information within the state, county and city (e.g., Maricopa County COVID-19 Information).

  2. Regularly communicate with employees as new information becomes available.

  3. Distribute current and accurate information regarding steps to minimize the potential for transmission.

  4. Post notifications in high-traffic areas, employee break rooms, kitchens, and restrooms.

  5. Depending on locations and type of business, it may be advisable to present information in multiple languages.

  6. Ensure that common areas and frequently touched surfaces are often disinfected.

  7. Require any employees who do not feel well to stay at home.

  8. Symptomatic employees, and employees who test positive for COVID-19, should stay away from work for a minimum of seven days and for at least 72 hours following their symptoms subsiding. (See below for CDC guidelines.)

  9. Provide the means and encourage employees to work from home. Employers must of course provide paid sick leave consistent with the new federal guidelines, existing Arizona law, and their policies to the extent the employee seeks such leave in lieu of working remotely.

  10. Routinely remind employees of the requirement that they must stay at home if they are symptomatic or diagnosed with COVID-19.

  11. If an employee is diagnosed with COVID-19, employers should follow the CDC’s advice, which is to advise the other employees of the diagnosis without revealing the identity of the employee. While word may spread in the workplace regarding the identity of the infected employee, employers should endeavor to maintain confidentiality to limit their liability.

  12. Employers may not demand to see an employee’s COVID-19 test results. However, the EEOC and CDC have explained that employers may ask employees questions related to COVID-19. Moreover, the CDC has recommended that, for a reasonable period of time regarding employees re-entering the workplace, employers follow other steps, such as checking temperature, requiring the wearing of facemasks, ensuring social distancing in the workspace to the fullest extent possible, and monitoring symptoms.

  13. Limit the number of vendor deliveries and encourage and provide the means for telephonic and video conference meetings with vendors and clients.

  14. Seek legal counsel about (a) the changing legal landscape in response to the COVID-19 pandemic, and (b) your rights and obligations under any applicable lease agreements, property management agreements and insurance policies.

EMPLOYEE HEALTH AND SAFETY LAWS AND REGULATIONS

Employers should review and comply with the General Duty Clause of the Occupational Safety and Health Act (OSHA), which requires employers to provide workers with “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” (See 29 USC 654(a)(1).) Arizona incorporates the same general duty as set forth in A.R.S. § 23-343.

Further, the Department of Labor (DOL) has published the following interim guidance relevant to “worker’s rights” pursuant to COVID-19: “OSHA Workers’ Rights COVID-19.” The DOL guidance explains that “[t]here is no specific OSHA standard covering COVID-19.” However, the guidance notes that (a) the general duty clause may apply; and (b) OSHA’s personal protective equipment standards may apply.

RECOMMENDATIONS FOR SYMPTOMATIC AND COVID-19 POSITIVE EMPLOYEES

The CDC provides guidance for employers having employees who are symptomatic or have tested positive for COVID-19, stating that “[e]mployees should not return to work until the criteria to discontinue home isolation are met, in consultation with healthcare providers and state and local health departments.”

As to COVID-19 positive patients, the CDC makes the following recommendations:

If the employee will not have a test to determine if the employee is still contagious, the employee may terminate isolation if all the following are true:

  • the employee has had no fever for at least 72 hours; and

  • other symptoms, such as shortness of breath, have improved; and

  • at least seven days have passed since symptoms first appeared.

If the employee will be tested to determine if the employee is still contagious, the employee may terminate isolation if all the following are true:

  • the employee no longer has a fever without the use of fever-reducing medication; and

  • other symptoms have improved; and

  • the employee received two negative tests in a row administered 24 hours apart.

It is further recommended that employees who have not tested positive for COVID-19 but nonetheless have symptoms follow the same guidelines set forth above. This means that symptomatic employees should be kept away from work for a minimum of seven days from when their symptoms first appeared and should not return until 72 hours have passed since their last COVID-19 symptom.

Employers should also strongly consider limiting employee business travel.

RECOMMENDATIONS FOR ASYMPTOMATIC ESSENTIAL EMPLOYEES WITH POSSIBLE EXPOSURE

CDC currently recommends that essential workers may be permitted to continue work following possible exposure to COVID-19 so long as they remain asymptomatic and supplemental precautions are put in place. A potential exposure means household contact or close contact within six feet of a person with confirmed or suspected COVID-19, including contact within 48 hours prior to the individual becoming symptomatic. The following recommendations apply to asymptomatic essential employees with potential exposure to COVID-19:

  • PRE-SCREEN: Prior to the employee entering the workplace, employers should take the employee’s temperature and assess symptoms.

  • MONITORING: The asymptomatic employee should self-monitor under the supervision of their employer’s occupational health program.

  • WEAR A MASK: The employee should always wear a face mask while in the workplace for 14 days after last exposure.

  • SOCIAL DISTANCE: The employee should maintain six feet of social distancing in the workplace.

  • DISINFECT: Routinely clean and disinfect all areas, including offices, bathrooms, kitchens, common areas, shared electronic equipment.

  • IF SYMPTOMS APPEAR: Send the employee home immediately if he or she becomes sick. Employers should determine, and create a record of, who had contact with the sick employee up to two days before symptoms appeared.

Employers should review and implement the CDC's “Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019.”

BALANCING EMPLOYEE PRIVACY RIGHTS

Employers are generally prohibited from requesting medical information from employees, except in limited circumstances, such as a self-insured employee health plan maintained by an employer under HIPAA. However, in the event of a pandemic, exceptions are made and even encouraged.

The EEOC has expressed that it is not a violation of the Americans with Disabilities Act (ADA) for employers to ask employees COVID-19-related questions during the pandemic. (See EEOC: Coronavirus and COVID-19). Indeed, the CDC and EEOC have encouraged employers to question employees regarding travel, exposure, or symptoms related to COVID-19.

Further, as of April 23, 2020, the EEOC advises that, under the ADA, employers may administer COVID-19 testing so long as the tests are reliable. Any such medical information provided by the employee in this regard should be treated as a confidential medical record, and employers should consult the EEOC guidelines in that regard.

The obligation to inform employees of other infected employees implicates both OSHA and the Arizona equivalent statute regarding the duty to (a) provide employees with a safe workplace and (b) respect the individual employee’s health privacy rights under HIPAA and the ADA. The EEOC’s guidance, last updated on April 23, 2020, explains:

[t]he EEO laws, including the ADA and Rehabilitation Act, continue to apply during the time of 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 COVID-19. Employers should remember that guidance from public health authorities is likely to change as the COVID-19 pandemic evolves. Therefore, employers should continue to follow the most current information on maintaining workplace safety.

The Department of Labor (the agency enforcing OSHA) has not issued similar guidance; however, it can reasonably be inferred that, based upon the EEOC’s deference to the CDC, that the DOL would also do the same.

If it is determined that notice should be provided to employees, the following is a suggested form of notice:

We have received information that an employee at our office has tested positive for the COVID-19 virus as of ______ (date). This means that you may have potentially been exposed to the virus. We will continue taking safety precautions inside the workplace to ensure that you are provided with a safe working environment and the tools needed for your safety moving forward. We encourage you to contact your primary care physician and/or your public health department for guidance regarding next steps.

OSHA RECORDKEEPING REQUIREMENTS

The aforementioned OSHA/DOL COVID-19 guide further explains the DOL’s view that COVID-19 can be a recordable illness in accordance with OSHA recordkeeping requirements if a worker is infected as a result of performing their work-related duties. See 29 CFR Part 1904. Certain industries are exempt from the recordkeeping requirement but nonetheless, they must report “any workplace incident that results in an employee’s fatality, inpatient hospitalization, amputation, or loss of any eye.” See 1904.2(a)(1). Exempt industries include: “offices of physicians; offices of other health practitioners...”). See 29 CFR 1904 Subpart B Appendix A. You should review this list and make sure you fall under an exempt industry.

Non-exempt employers are responsible for recording cases of COVID-19 only if all of the following are met:

  • The case is confirmed as COVID-19 (see CDC information on persons under investigation and presumptive positive and laboratory-confirmed cases of COVID-19.

  • The case is work-related, as defined by 29 CFR 1904.5.

  • The case involves one or more of the general recording criteria set forth in 29 CFR 1904.7, e.g., medical treatment beyond first aid, days away from work.

Work-related cases will be difficult to assess. 29 CFR 1904.5 explains that “you must consider an injury or illness to be work-related if an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness.”

The regulation provides additional guidance as to “how [you] handle a case if it is not obvious whether the precipitating event ... occurred in the work environment or away from work.” See 1904.5(b)(3). Even this guidance is vague, as it merely advises to “evaluate the employee’s work duties and environment to decide whether or not one or more events or exposures in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing condition.”

OTHER CONSIDERATIONS

Employers must consider the risk of liability in remaining open, particularly if a COVID-positive person has been on the premises. If an employee or customer tests positive for COVID-19, employers should advise persons who had contact with that person but, again, without identifying the employee.

Further, employers must consider steps to disinfect the workplace if a COVID-positive person enters the workplace or even common areas, and employees who interacted with the infected employee should be given leave to quarantine at home for a minimum of two weeks. Any vendor retained to conduct the work should be qualified to do so.

NOTE: As matters related to the COVID-19 virus are uncertain, official guidance related thereto may change often. As such, employers should ensure that they are relying upon the most recent guidelines. The information contained herein is based upon the available official guidelines as of April 30, 2020.