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By: Avi Meyerstein, Stacey Bowman, and Courtney Steelman, Husch Blackwell LLP
This checklist highlights key considerations for private employers to prepare for and respond to influenza (flu) and other potential pandemic outbreaks (including the coronavirus (COVID-19) pandemic). This is a non-jurisdictional checklist; it does not cover all potential federal, state, and local law distinctions.
The guidance below is appropriate for protecting a workplace at any time during a pandemic to the extent facilities are permitted by authorities to operate. This includes periods during a pandemic when some business may operate as essential, while others are closed. It also includes periods when authorities relax stay-at-home orders and allow increased business operations.
When community transmission of a virus is still occurring during a pandemic, many worker roles will qualify as at least medium risk exposure since any direct contact with another person—whether a co-worker, customer, vendor, or member of the public—could present an opportunity for exposure. As a result, workplaces reopening during the pandemic and during continued community transmission should continue to follow the appropriate protective measures addressed below.
The checklist is based heavily on the U.S. Centers for Disease Control and Prevention (CDC) and Occupational Safety and Health Administration (OSHA) guidance in response to the COVID-19 pandemic. Because that guidance has evolved over time due to the dynamic situation, employers should consult those primary sources for additional background and to update information when developing plans in accordance with this checklist.
Employers should meet with the emergency operations coordinator or team to develop a team dedicated to pandemics and a pandemic response plan. For information on pandemic response plans, see the section below entitled “Establish a Pandemic Plan (or Update an Existing One) and Adjust for Worker Absences.” If no emergency operations coordinator or team exists, designate one to coordinate a pandemic/flu response.
When developing a pandemic preparedness and response team, consider the following issues:
Every employee has a role in staying healthy and protecting others. To this end, employers should take the following action regarding pandemic health issues for employees.
If there is a vaccine available for the pandemic illness at issue, consider the following vaccination issues.
Employers must follow OSHA standards applicable to each workplace/employee. During a pandemic, OSHA’s existing rules—and any additional specific guidance—will most likely not be a perfect fit. Use judgment and care.17
Consider these OSHA guidelines and standards:
Based upon the level of exposure/risk of the employee, employers should consider the following precautions and measures.30
If an employer detects illness in the workplace, implement the following measures:
An optimal response during crisis and pandemic conditions requires planning. The CDC recommends creating or updating an existing pandemic response plan.
The pandemic response plan should include the following measures:
Employers should take the following steps when employees can return to work during or after a pandemic, including the COVID-19 pandemic:
This checklist is current as of May 28, 2020.
Avi Meyerstein is a partner at Husch Blackwell LLP and focuses his practice on complex investigations, workplace safety and health matters, and litigation and helps clients navigate all types of workplace safety and health issues. He helps companies comply and keep employees safe. When enforcement occurs, he represents clients during inspections, investigations, informal conferences, litigation, strategic settlements, and rulemakings. Avi and his team provide rapid-response crisis management. He brings years of experience managing complex investigations, interacting with government agencies, and preparing for potential litigation to address serious and fatal accidents and white-collar issues. Stacey Bowman is senior counsel at Husch Blackwell LLP and defends companies and healthcare facilities in litigation involving a wide variety of claims, including discrimination and related employment claims, claims of sham or unfair professional review actions, and restrictive covenant disputes. She has widespread experience in state and federal court and administrative actions before state agencies. A commercial litigator based in Husch Blackwell’s Denver office, Stacey has achieved favorable results in state and federal courts, including summary dismissal of a sham peer review lawsuit under the immunity afforded by the federal Health Care Quality Improvement Act. She also defends corporations, officers, and directors in complex commercial litigation in state and federal courts involving a wide variety of claims, including insurance coverage, product liability, labor and employment, and many other business torts. Courtney Steelman is an associate at Husch Blackwell LLP and focuses her practice on labor and employment law and business relations. She previously served as an Assistant Attorney General in the Litigation Section of the Missouri Attorney General’s Office. While there, she participated in legal proceedings, handling cases from inception to trial, and constantly kept a line of communication open with clients. Courtney also has experience with higher education. Courtney earned her B.A. from Columbia College and her J.D. and LL.M. in Dispute Resolution from the University of Missouri School of Law.
To find this article in Lexis Practice Advisor, follow this research path:
RESEARCH PATH: Labor & Employment > Employment Policies > Safety and Health > Checklists
For practical guidance to prepare for and respond to pandemic diseases, including COVID-19 or other widespread illnesses, see
> PANDEMIC FLU/INFLUENZA/CORONAVIRUS (COVID-19): KEY EMPLOYMENT LAW ISSUES, PREVENTION, AND RESPONSE
RESEARCH PATH: Labor & Employment > Employment Policies > Safety and Health > Practice Notes
For assistance in developing emergency planning and business continuity plans, including planning for COVID-19, see
> BUSINESS CONTINUITY AND EMERGENCY PLANNING
For an annotated vaccine declination form to be used to draft a policy allowing employees to decline a flu/influenza vaccination, including a future COVID-19 vaccination, see
> DECLINATION OF FLU/INFLUENZA VACCINATION FOR MEDICAL CONTRAINDICATION
RESEARCH PATH: Labor & Employment > Employment Policies > Safety and Health > Forms
For an outline of the various legal and practical issues facing employers with respect to telecommuting, see
> TELECOMMUTING EMPLOYEES: BEST PRACTICES CHECKLIST
For more information on issues relating to employee leaves, attendance, and disabilities, see
> ATTENDANCE, LEAVES, AND DISABILITIES STATE PRACTICE NOTES CHART
RESEARCH PATH: Labor & Employment > State Law Surveys and Content Guides > State Law Content Guides > Practice Notes
For a discussion on providing and requiring the use of face masks in a workplace, see
> EMPLOYERS PROVIDING FACE MASKS SHOULD REVIEW THEIR HEALTH AND SAFETY OBLIGATIONS
RESEARCH PATH: Labor & Employment > Wage and Hour > Compensation > Articles
For an overview of practical guidance on COVID-19, see
> CORONAVIRUS (COVID-19) RESOURCE KIT
RESEARCH PATH: Labor & Employment > Workplace Safety and Health > Policies and Procedures > Practice Notes
For tracking of key federal, state, and local labor and employment legal developments, see
> LABOR & EMPLOYMENT KEY LEGAL DEVELOPMENT TRACKER
1. https://www.osha.gov/Publications/influenza_pandemic.html. 2. https://www.osha.gov/SLTC/covid-19/. 3. https://www.osha.gov/Publications/OSHA3990.pdf. 4. https://www.osha.gov/Publications/OSHA3989.pdf. 5. https://www.osha.gov/memos/2020-04-13/interim-enforcement-response-plan-coronavirus-disease-2019-covid-19. 6. https://www.osha.gov/memos/2020-04-10/enforcement-guidance-recording-cases-coronavirus-disease-2019-covid-19. 7. https://www.osha.gov/Publications/influenza_pandemic.html. 8. https://www.osha.gov/Publications/exposure-risk-classification-factsheet.html. 9. https://www.osha.gov/laws-regs/interlinking/standards. 10. https://www.cdc.gov/coronavirus/2019-ncov/community/office-buildings.html. 11. https://www.cdc.gov/coronavirus/2019-ncov/downloads/php/CDC-Activities-Initiatives-for-COVID-19-Response.pdf. 12. https://www.cdc.gov/coronavirus/2019-ncov/index.html. 13. https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html. 14. https://www.cdc.gov/nonpharmaceutical-interventions/pdf/gr-pan-flu-work-set.pdf. 15. https://www.cdc.gov/nonpharmaceutical-interventions/pdf/do-your-part-slow-spread-flu-item5.pdf. 16. See CDC: COVID-19 Employer Information for Office Buildings 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, Get Your Workplace Ready for Pandemic Flu at https://www.cdc.gov/nonpharmaceutical-interventions/pdf/gr-pan-flu-work-set.pdf, Do Your Part to Slow the Spread of Flu at https://www.cdc.gov/nonpharmaceutical-interventions/pdf/do-your-part-slow-spread-flu-item5.pdf, Coronavirus (COVID-19) (CDC) at https://www.cdc.gov/coronavirus/2019-ncov/index.html, and Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19) at https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html. 17. For more on assessing exposures and preparing the workplace, see OSHA Guidance on Preparing Workplaces for an Influenza Pandemic at https://www.osha.gov/Publications/influenza_pandemic.html and OSHA Guidance on Preparing Workplaces for COVID-19 at https://www.osha.gov/Publications/OSHA3990.pdf. 18. 29 U.S.C.S. § 654(a). 19. 29 C.F.R. §§ 1926.59 and 1910.1200. 20. 29 C.F.R. § 1910.1030. 21. 29 C.F.R. § 1926.21(b). 22. 29 C.F.R. § 1926.50(a). 23. 29 C.F.R. § 1926.25. 24. See, e.g., COVID-19 Control and Prevention – Healthcare section at https://www.osha.gov/SLTC/covid-19/controlprevention.html#healthcare. 25. Follow OSHA rules at 29 C.F.R. § 1904. 26. 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. 27. COVID-19 Control and Prevention – Healthcare section at https://www.osha.gov/SLTC/covid-19/controlprevention.html#healthcare. 28. Id. 29. See Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19) at https://www.osha.gov/memos/2020-04-13/interim-enforcement-response-plan-coronavirus-disease-2019-covid-19. 30. For more information, also see OSHA Guidance on Preparing Workplaces for an Influenza Pandemic at https://www.osha.gov/Publications/influenza_pandemic.html and OSHA Guidance on Preparing Workplaces for COVID-19 at https://www.osha.gov/Publications/OSHA3990.pdf. 31. 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. 32. https://clicktime.symantec.com/3B4Cq8VSqzN3BdEFKh2jiUA7Vc?u=https%3A%2F%2Fwww.cdc.gov%2Fniosh%2Fnpptl%2Fpdfs%2FUnderstandDifferenceInfographic-508.pdf. 33. 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. 34. 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. 35. Id. 36. For DOL guidance on COVID-19 and the expanded FMLA, see DOL Guidance: Families First Coronavirus Response Act: Questions and Answers. See also COVID-19 or Other Public Health Emergencies and the Family and Medical Leave Act Questions and Answers. 37. Also see DOL Guidance: Families First Coronavirus Response Act: Questions and Answers. 38. See Coronavirus and COVID-19 (EEOC) at https://www.eeoc.gov/coronavirus/, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws at https://www1.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm?renderforprint=1, CDC: COVID-19 Employer Information for Office Buildings 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 Interim Guidance for Businesses and Employers (CDC) at https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html. 39. See Coronavirus and COVID-19 (EEOC) at https://www.eeoc.gov/coronavirus/, CDC: COVID-19 Employer Information for Office Buildings 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 Interim Guidance for Businesses and Employers (CDC) at https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html. 40. See 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. See also CDC: COVID-19 Employer Information for Office Buildings at https://www.cdc.gov/coronavirus/2019-ncov/community/office-buildings.html, which includes a section with guidance on employees returning to work called “Administrative controls: Change the way people work,” 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 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. 41. 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.