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.
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.
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
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
Maricopa County COVID-19 Information).
Regularly communicate with employees as new information becomes available.
Distribute current and accurate information regarding steps to minimize the
potential for transmission.
Post notifications in high-traffic areas, employee
break rooms, kitchens, and
Depending on locations and type of business, it may be advisable to present
information in multiple languages.
Ensure that common areas and frequently touched surfaces are often disinfected.
Require any employees who do not feel well to stay at home.
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.)
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.
Routinely remind employees of the requirement that they must stay at home if
they are symptomatic or diagnosed with COVID-19.
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.
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
Limit the number of vendor deliveries and encourage and provide the means for
telephonic and video conference meetings with vendors and clients.
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
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
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
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
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
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
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.”
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
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.”
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.