Coronavirus FAQs For US Employers

• Published date: 18 May 2020
• Author: Mr Michael J. Sheehan, Michelle S. Strowhiro, Lindsay Ditlow, Carole A. Spink, Scott Weinstein and Sandra M. DiVarco
• Subject Matter: Employment and HR, Food, Drugs, Healthcare, Life Sciences, Coronavirus (COVID-19), Health & Safety, Employee Benefits & Compensation, Employment and Workforce Wellbeing
• Law Firm: McDermott Will & Emery

FAQ

Our business is considered "essential," and our employees are still reporting to work. What steps can and should we take to keep our workplace healthy and safe?

Most states have issued some form of "shelter in place" or "stay at home" order to flatten the curve. As a result, many business operations have been temporarily suspended, unless the business is engaged in essential or critical infrastructure functions, or supports businesses engaged in such functions.

The Occupational Safety and Health Administration (OSHA) advises that the Occupational Safety and Health Act (OSHA Act) requirements may apply to preventing occupational exposure to COVID-19, including OSHA's personal protective equipment (PPE) standards (which require workplace modifications, as well as the use of gloves, eye and face protection, and respiratory protection in certain situations), and the General Duty Clause (which requires employers to furnish "employment and a place of employment which are free from recognized hazards that are causing or likely to cause the death or serious harm to . . . employees.") Employers could face fines under the OSHA Act if they do not take affirmative steps to protect their workers.

On April 13, 2020, OSHA issued guidance requiring its inspection officers to prioritize onsite inspections of workplaces with "high potential" for exposure (such as healthcare organizations and first responders) and complaints of fatalities or "imminent danger exposures" related to COVID-19 (although considerations should be maintained for phone- or video-based inspections). All other formal complaints in low- or medium-risk settings will generally not result in onsite inspections during the pandemic, and informal complaints related to COVID-19 exposure will be investigated through informal proceedings to expedite employers' attention to alleged hazards.

Employers should take proactive steps to limit onsite workers to essential personnel who cannot complete their work remotely. Steps employers should take to reduce their workers' risk of exposure to the virus include the following:

• Developing an infectious disease response plan (if one does not exist already)
• Implementing basic infection prevention measures
• Developing policies and procedures for prompt identification and isolation of sick people, if appropriate
• Developing, implementing and communicating about workplace flexibilities and protections
• Implementing workplace controls including social distancing
• Following existing OSHA standards.

Additionally, the Centers for Disease Control and Prevention (CDC) recommends that employers explore whether they can establish flexible work hours, such as staggered shifts, to increase the physical distance among employees and between employees and others. The CDC recommends that all members of the public wear non-medical-grade face coverings to avoid potentially infecting others, even if they have no symptoms. Some municipalities, such as Los Angeles County and Miami-Dade County, have ordered all employers to provide employees with (or reimburse employees for) non-medical-grade face coverings, from cloth masks to handkerchiefs and scarves, if workers are unable to remain a safe distance from each other or the public.

Employers also should discourage any non-essential business-related travel. Sales and marketing staff should be trained in engaging potential customers by email, phone and video. For employees who must report to work, certain protections can be used to prevent transmission of illness and assuage fears of transmission, such as social distancing, practicing good hygiene, using paper towels or other barriers to open and close doors, providing hand sanitizing stations, and increasing environmental cleaning and sanitation procedures.

Employers are encouraged to review CDC and OSHA strategies for minimizing the potential exposure risk for all employees. Employers should also consult state and local orders governing essential businesses for any additional requirements.

Are employees obligated to disclose if they have tested positive for COVID-19?

Generally, no. However, the Equal Employment Opportunity Commission (EEOC) has stated that employers may ask employees who report feeling ill at work, or who call in sick, questions about their symptoms to determine if they have or may have COVID-19. This guidance suggests that employers may ask employees to inform them of any positive COVID-19 test results, so that employers are able to take measures to protect the health and safety of other workers'an obligation employers bear under OSHA. That said, depending on the state of employment, state law may further restrict the employer's ability to ask an employee for their diagnosis (e.g. California). Employers should make every effort to maintain all information about employee illness as a confidential medical record for purposes of Americans with Disabilities Act (ADA) compliance.

Can we require employees to report if they or their coworkers have COVID-19 symptoms?

Generally, no. Based on EEOC guidance, employers may ask employees to report symptoms they are exhibiting. Employers may want to consider implementing reporting mechanisms that will help employees feel comfortable reporting this type of information and also allow the employer to efficiently track the information.

Asking employees to report their coworkers' symptoms could present more challenges than solutions. This request runs the risk of inviting employees to make reports based on possible biases and stereotypes regarding national origin or other protected categories, and encouraging employees to ask intrusive questions of their co-workers. Instead, employers should inform and encourage employees to self-monitor for signs and symptoms of COVID-19, particularly if they suspect possible exposure, and to self-report accordingly.

Can we require that employees have their temperature taken at work?

On March 18, 2020, the EEOC issued guidance confirming it is legally permissible to take employees' temperature and to ask if they are experiencing COVID-19 symptoms under the ADA and the Rehabilitation Act. Although most states still do not require employers to take employee temperatures, some states and localities do now require employee temperature taking and/or other health screens, and many states and localities recommend such screens (though do not require them) through local orders.

Are there any risks to requiring employees to have their temperature taken at work?

While temperature screening in the workplace and elsewhere may now become the norm in many businesses and has been sanctioned by the EEOC (see previous question), temperature taking of employees is not without some risk. When implementing temperature and other screening measures in the workplace, there are a number of things for employers to consider.

• Employers should ensure that their screening procedures are safe and consistent, apply to all those entering the workplace, including employees, customers, contractors/vendors, and guests, and that they give proper notice of screening measures.
• Temperature taking procedures should, at a minimum, encourage employees to self-monitor and stay home if they are experiencing any COVID-19 symptoms.
• Temperature taking in the workplace should be designed to maintain necessary confidentiality and safety via social distancing and proper PPE.

What options does our business have in implementing a temperature screen of employees? Should we ask employees to self-monitor, have employees screened at the door, or some combination?

In implementing temperature-screening measures, there are several options.

First, consistent with self-monitoring practices, an employer could require employees to take their temperature each day before reporting to work and to stay home if they have a fever. The CDC has defined a fever as 100.4 'F or higher. Depending on the state of employment, employees who do not have thermometers may be entitled to reimbursement for the purchase of a thermometer.

A second option is to provide employees with thermometers for use both prior to reporting to work and to monitor their temperatures throughout the day while at work for any spikes in temperature. Similarly, if the employee has a temperature of 100.4 'F or higher, they should be instructed to leave the workplace and seek medical attention.

Both of the above options eliminate the need to have another employee take each employee's temperature and for tracking and monitoring the time employees may otherwise spend waiting in line to be screened and being screened, which waiting time pay be compensable time in many states.

However, some employers may choose to designate an employee to screen employees and others entering the workplace for fever and other COVID-19 symptoms. If an employer chooses to do so, they should use a no touch thermometer or other temperature monitoring device which allows for distance between the operator and the individual being screened. Additionally, any employee performing such screening should be provided with the proper PPE including a protective gown, mask, and gloves. Additionally, in many states, the time a non-exempt employee spends waiting and being screened is compensable time. Again, if the employee or other individual attempting to enter the workplace exhibits a fever or other COVID-19 symptoms, they should be instructed to leave and seek medical attention. Also keep in mind that the employee tasked with taking temperatures will therefore have access to confidential employee medical information, as temperature screens are considered "medical examinations" by the EEOC; for this reason, some businesses may wish to avoid having an employee's direct supervisor perform the screen, to avoid a later allegation that the supervisor acted adversely to that employee based on their medical condition. In addition, an employee's results should be kept as confidential as possible...