Given the recent spread of COVID-19, many business are facing questions about how to prepare for and address potential outbreaks in the workplace.  The Centers for Disease Control (“CDC”), the U.S. Equal Employment Opportunity Commission (“EEOC”), and the Occupational Safety and Health Administration (“OSHA”) have provided, and continue to provide, relevant guidance for navigating the various issues – both legal and practical – facing many employers during this time.

The current situation related to COVID-19 remains fluid, and employers should remember to check the various agencies’ websites for updated guidance in the coming weeks.

Suggested Best Practices Based on Current Federal Government’s Guidance: 

• To the extent feasible for your company or organization, encourage telework and other forms of social distancing (such as staggering work shifts, limiting non-essential work travel, and discouraging large in-person group meetings);
• Consider appointing an individual or team at your organization to work on preparation for a potential COVID-19 outbreak in this area;
• Actively encourage employees to be mindful of their health and to stay home if they are experiencing any symptoms of cold or flu-like symptoms;
• Actively encourage employees to frequently wash their hands and to practice proper sneeze and cough etiquette;
• Consider putting up posters in visible places promoting best practices related to hygiene and illness (sample posters provided by the CDC are below);
• Be more flexible in allowing employees leave for illness or for unexpected situations such as school closures or self-quarantines;
• In the event an employee becomes sick at work or comes to work sick, separate the employee from other employees and send the employee home immediately.
• Actively encourage employees to check their own temperatures before coming to work.

If, and until, public health officials give guidance to the contrary, employers generally should not:

• Require employees to undergo temperature testing until a pandemic becomes widespread in the community as assessed by state or local health authorities or the CDC, at which time employers may measure employees’ body temperatures;
• Ask employees questions about their susceptibility to COVID-19.

The CDC, the EEOC and OSHA continue to offer guidance as new information related to COVID-19 becomes available.  These agencies’ current suggestions include:

CDC’s Recommended Strategies for Employers (found here: https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/guidance-business-response.html)

The CDC recommends the following steps to employers:

• Actively encourage sick employees to stay home
  • The CDC encourages employers to instruct employees who have symptoms to stay home and not come to work until they are “free of fever, signs of a fever, and any other symptoms for at least 24 hours.”
  • The CDC also encourages ensuring flexible sick leave policies and suggests that “employers should be aware that more employees may need to stay at home to care for sick children or other sick family members than is usual.”
  • The CDC does not recommend requiring a healthcare provider’s note for employees who are sick with acute respiratory illness, as medical facilities and healthcare providers may be extremely busy and unable to provide such documentation in a timely way.
• Separate sick employees
  • The CDC recommends that employees who become sick during the day or who arrive at work with symptoms should be separated from other employees and sent home immediately.
• Emphasize staying home when sick, respiratory etiquette and hand hygiene by all employees
  • The CDC recommends placing posters around the work place encouraging employees (1) to stay home when sick and (2) to practice appropriate cough, sneeze and hand hygiene.  The CDC offers printable materials for download at the following links: https://www.cdc.gov/nonpharmaceutical-interventions/tools-resources/educational-materials.html, https://www.cdc.gov/healthywater/hygiene/etiquette/coughing_sneezing.html, and https://www.cdc.gov/handwashing/materials.html.
  • Employers should provide tissues and no-touch disposal receptacles and soap, water, and alcohol-based hand rubs.
• Perform routine environmental cleaning
  • The CDC does not recommend additional disinfection beyond routine cleaning at this time, but does encourage employers to provide disposable wipes near commonly used surfaces.
• Advise employees before traveling to take certain steps
  • These steps include checking the CDC’s traveler’s health notices online and routinely checking themselves for symptoms of acute respiratory illness.
• Additional measures
  • Employees who are well but who have a sick family member at home with COVID-19 should notify their supervisor.
  • If an employee is confirmed to have COVID-19, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality as required by the Americans with Disabilities Act (ADA). 
    

If an employee is confirmed to have COVID-19 infection, or if an employee notifies their supervisor of a confirmed sick family member at home, the CDC also offers guidance for conducting a risk assessment on its website (https://www.cdc.gov/coronavirus/2019-ncov/php/risk-assessment.html).

EEOC Pandemic Preparedness Guidance (found here: https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm)

The EEOC has recently started pointing employers to its previous guidance on pandemic preparation for how to handle issues related to COVID-19 arising out of compliance with the Americans With Disabilities Act (“ADA”).  The guidance outlines the ADA’s protections and general prohibitions related to disability-related inquiries and required medical examinations of employees.  Generally, employers are prohibited from excluding individuals with disabilities from the workplace for health or safety reasons unless they pose a “direct threat.”  The guidance explains that:

Whether pandemic influenza rises to the level of a direct threat depends on the severity of the illness. If the CDC or state or local public health authorities determine that the illness is like seasonal influenza or the 2009 spring/summer H1N1 influenza, it would not pose a direct threat or justify disability-related inquiries and medical examinations. By contrast, if the CDC or state or local health authorities determine that pandemic influenza is significantly more severe, it could pose a direct threat. The assessment by the CDC or public health authorities would provide the objective evidence needed for a disability-related inquiry or medical examination.

During a pandemic, employers should rely on the latest CDC and state or local public health assessments. While the EEOC recognizes that public health recommendations may change during a crisis and differ between states, employers are expected to make their best efforts to obtain public health advice that is contemporaneous and appropriate for their location, and to make reasonable assessments of conditions in their workplace based on this information.

The guidance sets out certain ADA-compliant employer practices for pandemic preparedness, including:

• Before a pandemic, employers should identify a coordinator or team with defined roles and responsibilities for preparedness and response planning. The “team should include staff with expertise in all equal employment opportunity laws. Employees with disabilities should be included in planning discussions, and employer communications concerning pandemic preparedness should be accessible to employees with disabilities.”
• Before a pandemic begins, employers may not ask employees to disclose health conditions which make them more susceptible, as the response “is likely to disclosure the existence of a disability.”  However, the guidance also includes ADA-compliant pandemic survey questions an employer may ask which are “designed to identify potential non-medical reasons for absence during a pandemic.”
• During a pandemic, an employer may send employees home if they display symptoms.
• During a pandemic, an employer may ask employees if they are experiencing symptoms, so long as the information is maintained as a confidential medical record in compliance with the ADA.
• Generally employers may not take an employee’s body temperature, as it is considered a medical examination under the ADA.  However, if a pandemic “becomes widespread in the community as assessed by state or local health authorities or the CDC, then employers may measure employees’ body temperature.”
• During a pandemic, “if the CDC or state or local public health officials recommend that people who visit specified locations remain at home for several days until it is clear they do not have … symptoms, an employer may ask whether employees are returning from these locations, even if the travel was personal.”

OSHA Guidance (found here: https://www.osha.gov/SLTC/covid-19/index.html)

OSHA’s guidance related to COVID-19 notes that the following industries have the highest risk for employee exposure to COVID-19: healthcare, deathcare, airlines, waste management, and industries that require travel to areas where the virus is spreading.   For control and prevention, OSHA recommends that employers “adapt infection control strategies based on a thorough hazard assessment, using appropriate combinations of engineering and administrative controls, safe work practices, and personal protective equipment (PPE) to prevent worker exposures.” OSHA’s interim general guidance suggests that for “all U.S. workers and employers,” regardless of exposure risk, the following practices:

• Frequently washing hands with soap and water for at least 20 seconds. When soap and running water are unavailable, use an alcohol-based hand rub with at least 60% alcohol. Always wash hands that are visibly soiled;
• Avoid touching eyes, nose, or mouth with unwashed hands; and
• Avoid close contact with people who are sick

For employers where exposure to COVID-19 may occur, OSHA emphasizes the “prompt identification and isolation” of potentially infected individuals.   These guidelines suggest:

• Immediately isolating people suspected of having COVID-19;
• Taking steps to limit spread of the person’s infectious respiratory secretions, including by providing them a facemask and asking them to wear it, if they can tolerate doing so;
• If possible, isolate people suspected of having COVID-19 separately from those with confirmed cases of the virus to prevent further transmission, including in screening, triage, or healthcare facilities;
• Restrict the number of personnel entering isolation areas, including the room of a patient with suspected/confirmed COVID-19; and
• Protect workers in close contact with the sick person by using additional engineering and administrative control, safe work practices and PPE.

Should you have specific questions about navigating the law while taking steps to limit exposure to COVID-19, please contact Denis Jacobson at djacobson@tuggleduggins.com or (336) 271-5242 or Daniel Stratton at dstratton@tuggleduggins.com or (336) 271-5240.

© 2020 Tuggle Duggins P.A. All Rights Reserved. The purpose of this bulletin is to provide a general summary of significant legal developments. It is not intended to constitute legal advice or a recommended course of action in any given situation. It is not intended to be, and should not be, relied upon by the recipient in making decisions of a legal nature. Moreover, information contained in this bulletin may have changed subsequent to its publication. This bulletin does not create an attorney-client relationship between Tuggle Duggins P.A. and the recipient. Therefore, please consult legal counsel before making any decisions or taking any action concerning the issues discussed herein.