This article was updated on July 24, 2020.
As employers look to transition workers back into the workplace as stay-at-home orders and other business restrictions expire, many considerations exist, legal and otherwise. These considerations have become more immediate with many states involved with various phases of “reopening.”
Several laws come into play. The Occupational Safety and Health Act (OSHA) requires employers to “assure safe and healthful working conditions” and provide working conditions that are free of known dangers. As with other agencies, the federal Occupational Safety and Health Administration leans heavily on the Centers for Disease Control (CDC) for guidance regarding COVID-19 and how to address it in the workplace.
In its recent Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019, the CDC advises that “[a]ll employers need to consider how best to decrease the spread of COVID-19 and lower the impact in their workplace.” This may include activities to:
- reduce transmission among employees,
- maintain healthy business operations, and
- maintain a healthy work environment.
Negotiating the legal landscape of reopening your business requires continually staying abreast of guidance issued by federal, state and local governments. Restoring the confidence of both your workers and your customers is the goal. This includes a combination of performing testing, requiring or providing personal protective equipment, imposing social distancing guidelines, disinfecting the workplace, and addressing symptomatic employees.
Although worker testing is a natural beginning point for any reopening process, it can present challenges. On one hand, an employer has a compelling interest in protecting its workforce and operations by requiring that employees submit to body-temperature and other non-invasive tests that “are accurate and reliable” based on governmental standards issued by public health authorities such as the Food and Drug Administration (FDA) and CDC.
On the other hand, employers should be careful not to run afoul of the Americans With Disabilities Act (ADA) by discriminating against employees with disabilities, the Family and Medical Leave Act (FMLA) and Emergency Family and Medical Leave Act (EFMLA) by treating employees who have taken medical leave differently, or the Health Information Portability and Accountability Act (HIPAA) by failing to preserve the confidentiality of protected health information. The Equal Employment Opportunity Commission (EEOC), which enforces the ADA, has recently issued guidance advising that employers have leeway to make inquiries that touch upon employee health conditions and that, “[d]uring a pandemic, ADA-covered employers may ask such employees if they are experiencing symptoms of … COVID-19” such as “fever, chills, cough, shortness of breath, or sore throat.” This information must be maintained by employers “as a confidential medical record in compliance with the ADA.”
The determination as to which workers can return to the workplace can implicate disability concerns under the ADA, gender discrimination concerns under Title VII, and age discrimination concerns under the Age Discrimination in Employment Act (ADEA). The CDC has identified older persons, persons with underlying health conditions, and pregnant women as being at greater risk. This does not mean, however, that an employer should invite all employees to return except for employees who fall into these categories—regardless of whether the employer is concerned about these workers’ well-being.
Instead, a more prudent approach is to stand ready to offer accommodations to higher-risk employees. In that respect, companies should engage in the “interactive process” mandated by the ADA to determine whether a reasonable accommodation may be provided without imposing an undue hardship. A common accommodation will include allowing an employee whose disability places him/her at greater risk to work from home or take leave. Workers who have experienced significant stress due to the pandemic (particularly those with certain preexisting mental health conditions such as anxiety disorder, obsessive-compulsive disorder, or post-traumatic stress disorder) may require special consideration on a temporary basis in adjusting.
OSHA guidelines regarding cleaning and sanitation standards for the workplace rely on CDC guidance. The CDC recently issued Interim Recommendations for U.S. Community Facilities with Suspected/Confirmed Coronavirus Disease 2019 which provides guidance for cleaning the workplace.
Finally, in the processing of returning employees to the workplace, employers should consider revising existing workplace policies and/or issuing new policies. Particularly given the potential for a re-emergence of the virus, employers should implement a comprehensive infectious disease preparedness and response policy. It is important to have an emergency operations planning team which meets regularly during a pandemic to accurately assess, manage, and communicate possible risks. Early and vigilant action and will help keep workers healthy, reduce absenteeism, maintain productivity, and mitigate the negative impact of a disease.