If you asked a month ago what lawful precautions an employer can take to protect its workers against the threat of COVID-19, the answer would have been significantly different than it is today. In that short period, confirmed coronavirus cases in the United States have increased exponentially. In part as a result and also as a way to reduce the spread of the virus, millions of workers have been ordered to stay at home. The legal framework governing the employer-employee relationship and workplace safety continues to evolve almost daily. Below we outline recent federal guidance issued by the Equal Employment Opportunity Commission (EEOC) to assist employers in reducing the risk of community spread of COVID-19. This Update also examines employer guidelines for measures to combat the spread of COVID-19 among its current workforce.
Medical Inquiries and Examinations of Current Employees
On March 21, 2020, the EEOC updated its 2009 publication on “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act” (Pandemic Guidance) to address its application to COVID-19. Originally written during the 2009 H1N1 outbreak, the EEOC revised this guidance to provide employers a roadmap on workplace safety in the wake of the novel COVID-19 pandemic.
The Pandemic Guidance explains how ordinarily the Americans with Disabilities Act (ADA) and Rehabilitation Act restrict the types of inquiries an employer can make into a current employee’s medical status. These laws prohibit employers from requiring medical examinations and making disability-related inquiries unless (1) the inquiry or exam is job-related and consistent with business necessity, or (2) the employer has a reasonable belief an employee poses a “direct threat” to health or safety that cannot otherwise be eliminated or reduced by a reasonable accommodation.
Current CDC guidance, as well as that of other public health authorities, now acknowledges the significant risks of community spread of COVID-19. The virus clearly satisfies the “direct threat” standard. To combat that spread and prevent the risk of harm posed by a COVID-19-positive person in the workplace, the EEOC significantly relaxed ADA restrictions on employers posing medical inquiries of its employees regarding COVID-19 and the symptoms associated with it.
Employers may ask employees if they are experiencing symptoms of COVID-19, such as fever, chills, cough, shortness of breath, or sore throat. Further, as per CDC recommendations, an employer may ask employees if they recently traveled to an area with known local or international spread of COVID-19, or have come into close contact with someone who has a suspected or confirmed COVID-19 diagnosis. Such inquiries are tailored to whether the employee poses a direct threat of harm to the workplace, which if affirmative allows the employer to lawfully send the employee home.
Conversely, an ADA-covered employer cannot ask employees who do not exhibit or report flu-like symptoms whether they have a pre-existing medical condition that might render them more vulnerable to COVID-19 complications. In addition, any such information voluntarily disclosed by an employee must be maintained as confidential. However, the EEOC also states that when a flu pandemic, such as the current COVID-19 pandemic, becomes severe or serious, ADA-covered employers might have sufficient information to believe that employees are a direct threat if infected with COVID-19; in these instances, an employer would be permitted to make disability-related inquiries of asymptomatic employees without violating the ADA.
The EEOC Pandemic Guidance also explains that employers continuing on-site operations during the COVID-19 pandemic may take more proactive pre-screening measures – such as taking an employee’s temperature – that would ordinarily be considered a prohibited “medical examination.” However, the EEOC has made clear that the ADA and Rehabilitation Act rules continue to apply, so employers should administer temperature checks in a uniform and nondiscriminatory manner, and keep all information about employees obtained through disability-related inquiries or medical examinations confidential. Employers should also remember that, as a practical matter, temperature is not dispositive of a COVID-19 diagnosis. That is, an employee might be infected with COVID-19 without exhibiting some or all recognized symptoms, i.e., a fever.
The EEOC, like other government authorities and agencies, also encourages employers to require employees to exercise infection control practices like regular hand washing, increased sanitization, and proper coughing and sneezing etiquette. Employers may also require employees to wear personal protective equipment while onsite, which would reduce community spread of COVID-19. However, reasonable accommodations under the ADA should be made if an employee with a disability requests one (e.g., non-latex gloves). Employers continuing physical operations must also continue to provide reasonable accommodations (not related to the pandemic) to employees with known disabilities. One example is ensuring an employee with a known visual impairment who previously requested a particular screen as an accommodation has access to such a screen to perform work from his or her remote location.
Of note, the CDC also issued more specific guidelines for healthcare facilities and the treatment of healthcare workers providing medical care during the COVID-19 pandemic. Such employers should consult that guidance or seek legal counsel to assist in compliance.
OSHA Guidance for Employers
Employers must also be mindful of OSHA’s role in the workplace as relates to the COVID-19 outbreak. First and foremost, compliance with OSHA regulations and guidance can reduce or eliminate occupational illness and injury. In addition, employer compliance is evidence of reasonableness and may benefit an employer to potentially avoid or reduce liability in legal actions arising from occupational illness or injury.
OSHA recommends that employers prepare a written Infectious Disease Preparedness and Response Plan. The written plan should include employer actions to identify and prevent COVID-19 exposures, as described below and in OSHA rules and guidance.
More broadly speaking, employers should consider requiring employees to follow the face covering guidance in the course of their employment. On April 3, 2020, CDC issued new guidance recommending that persons employ cloth face coverings in public settings where other social distancing measures are difficult to maintain (e.g., grocery stores and pharmacies). The CDC stated that these measures are especially important in areas with high levels of community-based transmission, such as New Jersey. This is also consistent with Governor Murphy’s directive in Executive Order 122, issued on April 8, that essential business employers provide employees masks or face coverings to wear while performing their duties in the workplace.
As with other federal and other recommendations, in the event of death or other serious health effect at a facility, non-compliance could support an OSHA citation under OSHA’s General Duty Clause and could also support a claim that the facility was negligent in a tort liability suit. Therefore, as noted above, employers should require employees to follow the face covering guidance in the course of their employment. However, in doing so, employers should be mindful of OSHA’s respiratory protection standard and OSHA guidance with respect to respiratory protection. OSHA’s respiratory protection regulations and guidance generally provide that employers whose employees wear respiratory protection must have a written respiratory protection program, which sets forth how and when employees are medically qualified, fit-tested and trained. During this COVID-19 pandemic, these requirements remain in place and OSHA will exercise discretion in enforcing them. To help avoid any violation, an employer should prepare and maintain an appropriate policy for face coverings in line with the requirements for a respiratory protection policy. As helpful guidance, OSHA issued a workplace poster highlighting infection control measures that it recommends employers follow to further protect employees’ health and safety during the COVID-19 pandemic.
Connell Foley continues to assist businesses with employers’ COVID-19-related inquiries and to provide guidance on developing and implementing pre-screening measures and safety guidelines in accordance with law.
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For more than 20 years, Steve Barnett has represented clients concerned with health, safety and environment, in transactions, court proceedings and regulatory permitting and compliance matters.
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