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By: Richard D. Glovsky, Jordon R. Ferguson, and Rufino Gaytán III, Locke Lord LLP
Although the Occupational Safety and Health Administration (OSHA) has not adopted a standard addressing employers’ obligations to safeguard employees during a pandemic, OSHA has issued general guidance for employers as a direct result of the COVID-19 outbreak in the United States.1
BELOW WE SUMMARIZE KEY OSHA PANDEMIC AND coronavirus recommendations and provide guidance on handling health and safety issues during pandemics and COVID-19.
Employers should determine the exposure their employees may have to a pandemic disease. The exposure risk per employee will vary based on the nature of the disease, as well as the responsibilities of the employee. Even if employers determine that risk of infection during the course of employment is low, all employers should consider implementing a policy, customized to their work environment, with the goal of protecting employees (as well as visitors to the employers’ facilities) from contracting and spreading a pandemic disease.
The best way to lessen the risk of exposure is to follow the latest guidance from federal, state, and local governmental health authorities (Health Authorities), including, but not limited to, the Centers for Disease Control and Prevention (CDC). Conflicting guidance provided by Health Authorities should supersede guidance that employers issue.
Prevention and Flexible Work Arrangements
In most pandemic situations, good hygiene and infection control habits can help minimize the risk of exposure. Based on the latest guidance from the CDC for COVID-19, employers should consider observing the following practices:
Based upon guidance provided by Health Authorities, employers also should consider allowing employees to work from home as feasible, provide flexible schedules, and/or reduce work hours.
If an employee cannot work from home and cannot attend work due to being quarantined (whether required by law or as a best practice), employers may allow employees to use paid time off benefits to reduce the financial impact.
Another priority during a pandemic is to identify employees, customers, visitors, or others at the employer’s facilities who may have contracted a pandemic disease. Employers may address this issue by observing the following CDC recommendations:
No two pandemic diseases are identical or call for the same protective measures. As such, employers should consider the Health Authorities’ guidelines and periodically update their policies consistent with those guidelines. For example, if a Health Authority recommends increasing airflow in an indoor facility or the use of personal protective equipment (PPE) (e.g., gloves, face masks, or goggles) in certain industries, then employers should consider implementing those measures.
Employers should communicate to employees any additional or revised and implemented environmental controls, requirements, or recommendations.
Employers should continue to comply with all applicable OSHA standards. For example, healthcare employers should continue to enforce policies addressing bloodborne pathogens and required PPE, just as manufacturing employers should continue to observe lockout/tagout and guarding requirements. All employers should also consider implementing additional measures to maintain a clean and sanitary workplace and should continue to comply with OSHA’s recordkeeping requirements (e.g., OSHA 300 log), especially now for workplace exposures to COVID-19.2
OSHA also provides posters stating how employers can reduce the risk of exposure to coronavirus.3
COVID-19 Exposure Issues and Temporary Suspension of Recording Requirements for Most Employers and Subsequent Rescission of This Temporary Suspension
A COVID-19 exposure may be a recordable illness if the employee contracted the infection as a result of performing his or her work-related duties. Employers should analyze each exposure in light of the impacted employees’ job duties and the resulting effects of the infection (e.g., medical treatment received, days away from work, and restrictions posed by the infection). In many cases, it will not be possible to determine where an employee contracted COVID-19.
Recognizing that it is difficult for employers to determine whether an employee’s exposure to COVID-19 occurred at work and is thus recordable, OSHA suspended enforcement of its recordkeeping requirements for COVID-19 cases for most employers until May 26, 2020.4 However, employers must still record COVID 19 cases if (1) they have objective evidence that a COVID-19 case may be work-related and (2) the evidence was reasonably available to the employer.
This temporary suspension of recording requirements was not applicable to (1) healthcare employers; (2) emergency response organizations (e.g., emergency medical, firefighting and law enforcement services); and (3) correctional institutions. Employers in these industries must make work-relatedness determinations pursuant to 29 C.F.R. Pt. 1904.
Rescinding of Suspension of Recordkeeping Standard
OSHA rescinded the suspension of the recordkeeping standard as summarized above effective May 26, 2020.5 Under the new guidance, “OSHA is exercising discretion to assess employers’ efforts in making work-related determinations.” As part of this analysis, OSHA will consider the following issues:
Updated Interim Enforcement Response Plan
Also effective May 26, 2020 and pursuant to its May 19, 2020 Updated Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19),6 OSHA will operate under the following framework:
In either circumstance, OSHA will:
Employers should bear in mind that section 11(c) of the Occupational Safety and Health Act of 1970,7 prohibits employers from retaliating against workers for raising concerns about safety and health conditions. OSHA’s Whistleblower Protection Program protects employees from retaliation for raising or reporting concerns about violations of certain industry-specific federal laws, including those relating to airlines, commercial motor carriers, consumer products, environmental hazards, financial reforms, food safety, health insurance reforms, motor vehicle safety, nuclear facilities, pipeline companies, public transportation agencies, railroads, maritime businesses, securities, and tax laws.
On April 8, 2020, the Department of Labor issued a news release reminding employers that “[e]mployees have the right to safe and healthy workplaces,” and encouraging employees to contact OSHA if they “believe that their employer is retaliating against them for reporting unsafe working conditions[.]”8 Employers should carefully consider the risks of an adverse employment action against an employee who has raised health and safety concerns related to coronavirus, including concerns over work-related travel requirements.
This section addresses additional health and safety-related and return to work questions that employers may have. What if Employees Are Hesitant to Come to or Return to Work during COVID-19 or Another Pandemic? Employers should anticipate that, under certain circumstances, employees may refuse to work based on concerns over COVID-19 or other pandemic conditions. As explained above in the subsection entitled Retaliation Prohibition, if the employee’s concern for his or her safety or well-being is reasonable and raised in good faith, the Occupational Health and Safety Act protects the employee from retaliatory actions. Determining whether the employee’s concern is reasonable will require careful consideration of the circumstances of his or her job requirements. For example, if the employee will need to travel by airplane or other mass transit for work or if the work would require working in large groups, then his or her fear of contracting the virus might be reasonable based on the latest CDC guidance. Employers should consider alternatives and any administrative or engineering controls that may reduce or eliminate the risk altogether. For more information related to this question, see the question directly below.
If an Employee Does Not Qualify for Leave under the FFCRA, but Is Concerned about Returning to Work due to Safety Concerns (Precautions at Workplace / Possible Sick Employees), Can the Employer Require the Employee to Use Vacation Time/PTO for Missing Workdays?
Even if the FFCRA does not apply, there may be other protections for employees who are scared to return to work. As stated above, the OSH Act allows employees to refuse to work if they reasonably believe there is a threat of death or serious physical harm likely to occur immediately or within a short period. The National Labor Relations Act grants employees the right to join together to engage in protected concerted activity, including joining together to refuse to work in unsafe conditions. Additionally, the ADA may permit an employee to request an accommodation that includes changes to the work environment to reduce contact with others. There may be additional local or state protections for employees, as well. In many states, an employer’s PTO/vacation policy will govern and whether the employer may force the employee to use vacation time or PTO may depend on the language of the employer’s policy. Note that the FFCRA generally prohibits employers from requiring that employees use employer-provided vacation time, sick time, or other paid time off before using leave under the Act.
Can an Employer Tell Employees that if They Come to or Return to Work Sick, or with Knowledge that They Might Be Sick and/or Contagious (e.g., They Live with Someone Who Is Sick or Tested Positive), that They Will Be Subject to Disciplinary Action and/or Termination?
There may be certain state and local laws and guidance that impact an employer's ability to take the disciplinary action that this question suggests. In general, however, EEOC guidance suggests that an employer can send a sick employee home.9 Additionally, employers can require employees to report their symptoms to HR or another member of management before coming to work, especially where the employee or employer suspects there has been COVID-19 exposure or infection.
As for employees with knowledge that they might be sick and/ or contagious (e.g., they live with someone who is sick or tested positive), disciplining or terminating them is generally risky. The employer may instead want to use a health questionnaire to determine whether the employee has knowledge he or she is sick or a risk to the workplace. If the employee lies on the health questionnaire then it would be less risky for the employer to discipline or terminate the employee. Otherwise, the employer should be the one monitoring the responses to the health questionnaire and determining if an employee should stay home.
What If an Employee Declines to Come Back to Work Because He or She Is Making More Money in Unemployment While the Extra CARES Act Unemployment Benefits Are Available?
The Federal Pandemic Unemployment Compensation (FPUC) part of the CARES Act provides that employees who are eligible for unemployment benefits will receive an additional $600 per week during unemployment between April 5, 2020 and July 31, 2020. Generally speaking, an employee is not eligible for unemployment benefits if an employer offers his or her job back. Most states require employees receiving unemployment benefits to search for “suitable employment” while receiving benefits and to indicate periodically that they have been doing so. If an employee declines to return to work because he or she is receiving unemployment compensation in excess of his or her compensation when previously employed, his or her employer should inform the employee in writing that his or her job is available again and confirm that the employee has declined to accept it. The offer of the employee’s job back likely would amount to “suitable employment.” Having said that, state law governs and some states have diminished the job search requirement during the COVID-19 pandemic. It is therefore necessary to check applicable state law to determine whether an employee who rejects an offer to return to his or her previous job would still be eligible for unemployment benefits.
What Questions Should Employers Ask Employees Suspected of Being Sick with COVID-19 or the Flu?
Just as employees may have concerns about continuing to work or a return to work during a pandemic, employers also may have concerns about employees at work who may be sick with a pandemic disease. When addressing these situations, employers should balance the need to take measures that keep employees safe with employment laws their actions may implicate. Employers should review the latest guidance provided by OSHA, the Equal Employment Opportunity Commission (EEOC), the CDC, and any other government agencies addressing a pandemic or a local or regional health concern.10
For purposes of combatting COVID-19, the EEOC has given employers leeway to make medical inquiries that the Americans with Disabilities Act (ADA) otherwise might prohibit.11
Below is a list of questions employers should consider asking employees suspected of having COVID-19:
Can Employers Prevent Employees from Coming to or Returning to Work during COVID-19 or Another Pandemic?
Absent an agreement with an employee or a collective bargaining agreement that restricts the employer’s authority to dictate hours of work, levels of production, or similar issues, an employer is typically free to send employees home from work. To the extent that employees can work remotely, OSHA encourages employers to allow telecommuting, working from home, alternating schedules, reducing work hours, or similar measures to reduce the risk of spreading COVID-19 or a flu.
If an employee is diagnosed with COVID-19, an employer should prohibit that employee from coming into the workplace, consistent with the latest guidelines from public health authorities like the CDC. If the employee can work remotely, the employer should allow the employee to do so. Moreover, for employees who may display symptoms of COVID-19, employers should consider taking similar actions, provided that they account for other employment laws, including the ADA. To the extent an employee who is confirmed or presumptively diagnosed with COVID-19 has been in close contact with co-workers, the employer may inform those co-workers of their potential exposure, but the employer must not disclose the employee’s identity without his or her written consent.
What Steps Should Employers Take before Allowing a Previously Infected Employee to Return to Work?
Before allowing employees who test positive for COVID-19 or another pandemic disease or who displayed symptoms associated with a pandemic disease to return to work, employers may require employees to:
Pursuant to CDC guidelines, employers should advise sick employees that they should not leave home and return to work until:
Can Employers Administer Mandatory COVID-19 Testing for Their Employees before They Return to Work or Enter the Workplace?
Yes. On April 23, 2020, the EEOC stated employers can test their employees to determine if they have COVID-19 before they enter the workplace because employees who have the coronavirus will pose a direct threat to the health of others.16 The EEOC will not deem such testing by employers to be a violation of the Americans with Disabilities Act (ADA).17 The EEOC also added that employers should (1) ensure the reliability and accuracy of the tests, (2) consider potential false-positives or false-negatives, and (3) understand testing can only show whether the employee has the virus at the time of the test and cannot predict whether the employee will be susceptible to the virus at a later time.18
The EEOC does well to caution employers about the reliability and accuracy of tests currently available in the United States, especially because the Food and Drug Administration (FDA) has yet to approve or clear a test for COVID-19.19 However, the FDA believes that the molecular tests for which it has issued Emergency Use Authorizations are highly accurate.20 On the other hand, the FDA states that COVID-19 antibody tests should not be used alone to diagnose COVID-19 due to their potential for false negative and false positive results.21
Even if accurate tests become widely available, employers will need to consider both the costs associated with and the practical limitations of such tests. As the EEOC indicates, a negative test result for an employee in the morning means nothing by lunchtime. To rely on testing effectively, employers would need to consider the frequency of such tests, the costs of which could easily become prohibitive and their implementation disruptive. Health questionnaires and vigilant monitoring for symptoms associated with COVID-19 may serve as useful, cost-effective, and less disruptive alternatives to testing. For additional guidance, see the subsection above entitled “What Questions Should Employers Ask Employees Suspected of Being Sick with COVID-19 or the Flu?” As tests become more widely available both to employers and employees, employers will need to consider additional issues, which neither the EEOC, FDA, OSHA, nor any other federal agency have explicitly addressed as of May, 2020, including:
Is It Recommended to Obtain Any Form of Release before an Employer Requests Medical Information, Including a Health Questionnaire?
The enforceability of a release may be governed by state law, so their effectiveness could vary by state (and there are open questions about their enforceability under various federal statutes). However, given the EEOC’s latest guidance permitting employers to use health questionnaires and perform testing, a release is not necessary, particularly if employers are taking steps to ensure that all medical information is kept confidential.
In Certain States the State OSHA Has Not Made a Specific Finding as to Whether Cloth Face Masks are PPE. What Considerations Should an Employer Make before Adopting a Policy Requiring Face Masks Versus Providing Masks and Strongly Encouraging Employees to Use Masks?
As of May 20, 2020, Federal OSHA has also not taken a position on this issue yet. In general, cloth face masks may be considered PPE because of how OSHA views PPE (e.g., anything that provides protection to employees). The issue is whether an employer must pay for the PPE (in this case masks) or if it falls into an exempt category (e.g., ordinary clothing). There is no definitive answer yet on this issue (but if your state or local government require employers to provide masks, then at least this part is clear).
Employers should certainly consider permitting employees to wear masks voluntarily, as the latest CDC guidance indicates this to be the best practice, particularly when social distancing (keeping at least six feet apart) is not feasible. In light of the CDC guidance, however, employers may be in the best position (from a safety compliance standpoint) if they require the use of masks in the workplace and also provide employees masks (or allow employees to wear their own if they prefer). There are obvious considerations regarding such a policy, including costs and the availability of masks generally.
This article is current as of May 28, 2020.
Richard D. Glovsky, a partner in Locke Lord LLP’s Boston office, co-chairs the firm’s robust Labor and Employment Practice Group. He handles employment litigation, including class actions, wage and hour issues, and discrimination and retaliation claims; prosecutes cases for Fortune 500 companies and other businesses to protect their trade secrets and to prevent former employees from violating non-competition and non-solicitation obligations; and is a valued counselor on employment related matters. Mr. Glovsky is recognized in both Chambers USA and The Best Lawyers in America for his work in labor and employment law. He is a former Assistant U.S. Attorney and Chief of the Civil Division of the U.S. Attorney’s Office for the District of Massachusetts. Jordon R. Ferguson’s practice at Locke Lord LLP is devoted to providing litigation and counseling services to employers on national and state-specific bases. Jordon has extensive experience defending and prosecuting claims on behalf of employers on individual, representative, and class-wide claims before state and federal courts and governmental agencies, including the EEOC, the California Department of Fair Employment and Housing, and the California Division of Labor Standards Enforcement. Rufino Gaytán III counsels employers in every aspect of labor and employment law at Locke Lord LLP. Rufino has extensive experience advising clients on workplace health and safety issues, and he has represented clients before OSHA. Rufino has advised and represented clients during OSHA’s initial onsite inspections, negotiated the reduction or elimination of alleged violations and penalties, and defended clients before the Occupational Safety and Health Review Commission.
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1. See COVID-19 (OSHA) at https://www.osha.gov/SLTC/covid-19/, Prevent Worker Exposure to Coronavirus (COVID-19) at https://www.osha.gov/Publications/OSHA3989.pdf, and Guidance on Preparing Workplaces for COVID-19 at https://www.osha.gov/Publications/OSHA3990.pdf. 2. For a detailed summary of existing OSHA standards that may be directly relevant to COVID-19, visit OSHA’s COVID-19 Standards website at https://www.osha.gov/SLTC/covid-19/standards.html. See also OSHA Guidance on Preparing Workplaces for COVID-19 at https://www.osha.gov/Publications/OSHA3990.pdf and Prevent Worker Exposure to Coronavirus (COVID-19) at https://www.osha.gov/Publications/OSHA3989.pdf. 3. See Ten Steps All Workplaces Can Take to Reduce Risk of Exposure to Coronavirus (English Version) at https://www.osha.gov/Publications/OSHA3994.pdf and Ten Steps All Workplaces Can Take to Reduce Risk of Exposure to Coronavirus (Spanish Version) at https://www.osha.gov/Publications/OSHA3995.pdf. 4. See Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19), Occ. Safety & Health Admin. (Apr. 10, 2020) at https://www.osha.gov/memos/2020-04-10/enforcement-guidance-recording-cases-coronavirus-disease-2019-covid-19. See Updated Enforcement Guidance for Recording Cases of Coronavirus Disease (COVID-19) on May 19, 2020 at https://www.osha.gov/memos/2020-05-19/revised-enforcement-guidance-recording-casescoronavirus-disease-2019-covid-19. 5. See Updated Enforcement Guidance for Recording Cases of Coronavirus Disease (COVID-19) on May 19, 2020 at https://www.osha.gov/memos/2020-05-19/revised-enforcement-guidance-recording-cases-coronavirus-disease-2019-covid-19. 6. See https://www.osha.gov/memos/2020-05-19/updated-interim-enforcement-response-plan-coronavirus-disease-2019-covid-19. 7. 29 U.S.C.S. § 660(c). 8. See U.S. Dep’t of Lab. Reminds Employers that they Cannot Retaliate Against Workers Reporting Unsafe Conditions During Coronavirus Pandemic (Apr. 8, 2020) at https://content.govdelivery.com/accounts/USDOL/bulletins/2858415. 9. See What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws (Question A.4.) at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws. 10. For COVID-19 guidance from these agencies, see COVID-19 (OSHA) at https://www.osha.gov/SLTC/covid-19/, Coronavirus and COVID-19 (EEOC) at https://www.eeoc.gov/coronavirus/, and Interim Guidance for Businesses and Employers (CDC) at https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html. Also see CDC: COVID-19 Employer Information for Office Buildings, which includes a section with guidance on employees returning to work called “Administrative controls: Change the way people work” at https://www.cdc.gov/coronavirus/2019-ncov/community/office-buildings.html, CDC Activities and Initiatives Supporting the COVID-19 Response and the President’s Plan for Opening America Up Again at https://www.cdc.gov/coronavirus/2019-ncov/downloads/php/CDC-Activities-Initiatives-for-COVID-19-Response.pdf, CDC: When You Can be Around Others After You Had or Likely Had COVID-19 at https://www.cdc.gov/coronavirus/2019-ncov/if-you-are-sick/end-home-isolation.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fprevent-getting-sick%2Fwhen-its-safe.html, and CDC: Criteria for Return to Work for Healthcare Personnel with Suspected or Confirmed COVID-19 (Interim Guidance) at https://www.cdc.gov/coronavirus/2019-ncov/hcp/return-to-work.html. 11. See What You Should Know About the ADA, the Rehabilitation Act and the Coronavirus at https://www1.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm?renderforprint=1. 12. See CDC’s Coronavirus Disease 2019 Travel Health Notices at https://www.cdc.gov/coronavirus/2019-ncov/travelers/map-and-travel-notices.html. 13. See CDC’s Coronavirus Disease 2019 People Who are at Higher Risk at https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html. 14. Also see CDC: Implementing Safety Practices for Critical Infrastructure Workers Who May Have Had Exposure to a Person with Suspected or Confirmed COVID-19 at https://www.cdc.gov/coronavirus/2019-ncov/community/critical-workers/implementing-safety-practices.html and CDC: Return to Work for Healthcare Personnel with Confirmed or Suspected COVID-19 at https://www.cdc.gov/coronavirus/2019-ncov/hcp/return-to-work.html. 15. See CDC: When You Can be Around Others After You Had or Likely Had COVID-19 at https://www.cdc.gov/coronavirus/2019-ncov/if-you-are-sick/end-home-isolation.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fprevent-getting-sick%2Fwhen-its-safe.html and CDC: Criteria for Return to Work for Healthcare Personnel with Suspected or Confirmed COVID-19 (Interim Guidance) at https://www.cdc.gov/coronavirus/2019-ncov/hcp/return-to-work.html. Also see CDC: COVID-19 Employer Information for Office Buildings, which includes a section with guidance on employees returning to work called “Administrative controls: Change the way people work” at https://www.cdc.gov/coronavirus/2019-ncov/community/office-buildings.html, CDC Activities and Initiatives Supporting the COVID-19 Response and the President’s Plan for Opening America Up Again at https://www.cdc.gov/coronavirus/2019- ncov/downloads/php/CDC-Activities-Initiatives-for-COVID-19-Response.pdf and CDC: Implementing Safety Practices for Critical Infrastructure Workers Who May Have Had Exposure to a Person with Suspected or Confirmed COVID-19 at https://www.cdc.gov/coronavirus/2019-ncov/community/critical-workers/implementing-safety-practices.html. 16. See What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws (Question A.6.) at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws. 17. Id. 18. Id. 19. See Coronavirus Disease 2019 (COVID-19) Frequently Asked Questions (FDA) at https://www.fda.gov/emergency-preparedness-and-response/coronavirus-disease-2019-covid-19/coronavirus-disease-2019-covid-19-frequently-asked-questions#devices. 20. Id. 21. Id.