The Occupational Safety and Health Act (“OSHA”) assures safe and healthful working conditions for working men and women. This includes an employer’s obligation to shield its workers from situations likely to cause serious physical harm or death. Making haste business decisions may potentially expose employers to discrimination and disability claims, as well as wage and hour claims. We are getting into the murky waters of PTO and workers’ compensation if an employee contracts Covid-19 in the course of their employment. The pandemic implicates a range of employment laws, including the ADA, FLSA, OSHA, Title VII, and ERISA.
As our country continues to face COVID-19, employers will be hard-pressed to face operational challenges with legal implications in the areas of worker health, safety, privacy issues and equal employment. The list is expansive when it comes to operational protection as a whole and for workers. Below is a list offering a starting point for what employers should do in dealing with Covid-19. It takes into account increased rates of worker absenteeism, the need for social distancing, staggered work shifts, remote delivery, cross-training to ensure continued operations and un-interrupted supply chains. Please note this is not all-encompassing.
Establish practices on flexible worksites (e.g. telecommuting) and flexible work hours (e.g. staggered work shifts) to increase physical distance between employees, and others. This also conforms with Federal Mandate to congregate in groups of 10 or less. Discourage workers from using other workers’ phones, desks, offices or other work tools and equipment when possible.
If an employee has advised of or is exhibiting symptoms, you may ask the employee to undergo medical testing. The CDC had instructed healthcare providers to be selective in how testing was administered. Since this instruction, more tests have become available to the public. Screening all employees’ temperatures as they enter the workplace was considered to cause more panic that benefit. A few weeks ago such screening was seen to potentially violate the Americans with Disabilities Act (ADA) as did requiring employees undergo a medical test to confirm a COVID-19 diagnosis. There have been no ADA violations to date. Further, with the implementation of emergency leave and FMLA +, a confidential COVID-19 diagnosis to the employer aids in guiding the employee on the type of leave available. *
If a worker has recently traveled to a COVID-19 “hotspot,” instruct the worker to self-quarantine for the 14-day period. Dependent on worker responsibility and employer need, individualized decisions can be made on teleworking. Do not treat employees differently. This implicates several discrimination protections. For example, do not limit your requests for employees to stay home or self-quarantine to older or pregnant employees or to employees of specific races or national origin.
Designate a human resources representative to handle all individualized COVID-19 worker concerns. Designate a point person to field all other COVID-19 questions. Ensure you have a way to reach all employees if they lose access to work email, regardless of where they are located. A simple cellphone list is a good starting point.
If a worker tests positive for COVID-19, require the worker to self-quarantine at home. Whether you should pay sick or quarantined employees (who are not working remotely) depends on their exempt or nonexempt status; previous use of sick leave; union contracts; and your policies and benefit plans. You can bend the “normal” rules to show concern about employee health. For example, forcing employees to stay home for two weeks without pay or to use precious PTO could incentivize hiding symptoms or travel, which defeats the goal of preventing spread in the workplace.
Worker privacy is paramount. Do not ask “Do you have COVID-19?” This is a potential violation of the ADA. It is not clear if COVID-19 qualifies as a “disability,” employers generally need to know whether employees are fit to work and what limitations, if any, they have—not a specific diagnosis.) Generally, you can ask, “do you have any of the specific symptoms (listed on the CDC website)”?
If you learn that an employee has been diagnosed with COVID-19, and you have not been contacted by local health authorities, contact the health agency to seek guidance on employee communication or other steps the agency wants you to take.
Establish a plan now. The plan should include how to operate considering worker absenteeism, mandated closures, alternative suppliers and prioritizing customers and functions.
Chartwell Law’s team of attorneys are continuously researching how COVID-19 will affect employers across all states in which we practice. We will continue to inform you as information is obtained. As always, we are available to assist you as you navigate through these uncharted and challenging times.
*This portion of the article has been revised to reflect recent additional provisions, regulations and laws since its original publication.
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