As federal, state and local governments continue to develop their responses to the COVID-19 outbreak, employers may find themselves in uncharted territory as to how to deal with emerging employee issues. While many of us are thinking about how to keep our businesses going, some of us may be overlooking our obligations on the employee safety side, particularly when it comes to our obligations under the Occupational Safety and Health Act of 1970 (“OSH Act”). As the number of novel Coronavirus (COVID-19) illness cases continue to grow in the United States, employers need to be aware of their legal obligations under the OSH Act, along with some key guidance relating to worker exposure to the Coronavirus. Both the Occupational Safety and Health Administration (“OSHA”) and the Centers for Disease Control and Prevention (“CDC”) have issued guidance on steps that employers can take to prevent workplace exposures to the Coronavirus. In addition, the Equal Employment Opportunity Commission (“EEOC”) is actively reminding employers of its 2009 guidance which it published as “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act (“ADA”).”
We recommend that you review the plans and strategies you have in place to protect your workers from exposure to the Coronavirus, verify that they incorporate OSHA’s legal requirements and CDC’s recommended practices, review EEOC guidance and limitations under the ADA, maintain good communication with your employees, and continue to monitor for new developments, adjusting as necessary to address the ever evolving circumstances.
Section 5(a) of the OSH Act requires each employer to: (1) “furnish to each of its employees a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm,” and (2) “comply with Occupational Safety and Health Standards promulgated under” the OSH Act. 29 USC §654(a). In addition, employers must comply with other OSHA standards including the potential provision of personal protective equipment, safety data sheets, and recordkeeping and reporting requirements for occupational injuries and illnesses.
General Duty Clause: The requirement to furnish employees with “employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm” is known as the General Duty Clause. With respect to the potential for employee exposure to the Coronavirus, the General Duty Clause arguably requires employers to implement feasible and useful methods to address potential exposures. If an employer fails to take measures to address the potential for employee exposure to the Coronavirus, the employer could, perhaps, be subject to liability under the General Duty Clause. In other words, although an employee infected with COVID‑19 may be able to work, OSHA’s General Duty Clause requires employers to protect other employees and, in such a situation, the employee should be directed to remain at home until medically cleared to return to work.
Occupational Safety and Health Standards: While there are no specific OSHA standards that are specific to the Coronavirus, the following standards may be applicable in addressing employee exposure to the Coronavirus:
Personal Protective Equipment (PPE), 29 C.F.R. 1910 Subpart I: Under 29 C.F.R. §1910.132, employers have an obligation to assess the hazards in their workplace, select appropriate PPE, and provide the selected PPE to their employees for use. Depending upon an employee’s work task, setting, and potential exposures to the coronavirus and/or the chemicals used for cleaning and disinfection, employers should assess whether PPE such as gloves, eye and face protection, and respiratory protection may be necessary. Keep in mind that if respirators are necessary to protect workers, employers are required to have a comprehensive respiratory protection program in accordance with 29 C.F.R. §1910.134.
Sanitation Standard, 29 C.F.R. §1910.141: Employers have an obligation under the Sanitation Standard to keep their workplaces clean “to the extent that the nature of work allows,” and to take specific measures to ensure sanitary conditions. Employers should ensure that they are implementing these measures as they may help prevent employee exposures to the Coronavirus.
Hazard Communication Standard, 29 C.F.R. §1910.1200: Employers have an obligation under the Hazard Communication Standard to provide information to their employees about hazardous chemicals to which they are exposed. If workers will be exposed to hazardous chemicals for the purposes of cleaning and disinfection, employers should ensure that their hazard communication program addresses the hazards. Employers should also provide to employees exposed to hazardous chemicals used for cleaning and disinfection with appropriate training, PPE and product information, such as safety data sheets.
Access to Employee Exposure and Medical Records, 29 C.F.R. §1910.1020: Employers have an obligation to maintain and provide employees with a right of access to their exposure and medical records. To the extent that employers have employee exposure or medical records related to Coronavirus exposure, they must maintain and provide a right of access to those records in accordance with 29 C.F.R. §1910.1020.
Recordkeeping and Reporting Requirements: As you are aware, employers are required under 29 C.F.R. §1904.4 to keep records of certain work-related injuries, illnesses, and fatalities. While cases of the common cold and flu are exempt from recording under 29 C.F.R. §1904.5(b)(2)(viii), OSHA issued a clarification on its website that COVID-19 does not fall under that exemption. This means that employers who are subject to the OSHA recordkeeping and reporting rules must include and log employee illnesses related to the Coronavirus when an employee is infected on the job. For example, self-quarantining by an employee infected due to workplace exposure to the Coronavirus would likely result in days away from work and hence be reportable. In addition, if such infection were to result in an in-patient hospitalization or fatality, an employer may have to report that information to OSHA promptly pursuant to 29 C.F.R. §1904.39.
Government Issued Guidance for Employers
Both OSHA and the CDC have issued guidance on the steps that employers can take to prevent workplace exposures to the Coronavirus.
OSHA Guidance: OSHA has created a web page with information about hazard recognition, applicable standards, steps that can be taken to prevent worker exposure, and additional resources. The guidance issued by OSHA earlier this week contains recommendations and describes safety and health standards that, if followed, could help employers reduce potential enforcement actions for employees who may be exposed to COVID-19 in the workplace. The guidance recommends that employers also consult the CDC guidance described below. The OSHA guidance also notes that even though OSHA’s Bloodborne Pathogens Standard would not usually apply to the respiratory secretions that may transmit the coronavirus, it offers a useful framework that may help control some sources of the virus.
CDC Guidance: The CDC has developed “Interim Guidance for Businesses and Employers to Respond to Coronavirus Disease 2019 (COVID-19).” This guidance recommends several strategies for employers to use to help prevent workplace exposures to the Coronavirus. These strategies include:
- emphasizing that employees should stay home when sick;
- separating sick employees;
- directing employees to practice respiratory etiquette and good hand hygiene;
- performing frequent environmental cleaning;
- advising employees of certain precautions before traveling; and
- taking measures when there are confirmed Coronavirus exposures (either of an employee or a family member).
For some employees, teleconferencing can reduce the need for travel or even physical presence in the workplace.
The CDC encourages employers to be flexible and involve employees in developing and reviewing their plans.
Employers should remain informed. To that end, employers should review the CDC’s Interim Guidance which are available online. Employers are also encouraged to keep track of current travel warning notices, such as by checking the CDC’s “Travel Information” web page, and provide guidance to their employees accordingly.
The ADA and the 2009 EEOC Guidance on Pandemic Preparedness
Generally, the ADA prohibits an employer from making disability-related inquiries and requiring medical examinations of employees, except under limited circumstances. An inquiry is “disability-related” if it is likely to elicit information about a disability. A “medical examination” is a procedure or test that seeks information about an individual’s physical or mental impairments or health. Whether a procedure is a medical examination under the ADA is determined by considering factors such as whether the test involves the use of medical equipment; whether it is invasive; whether it is designed to reveal the existence of a physical or mental impairment; and whether it is given or interpreted by a medical professional.
The ADA prohibits employee disability-related inquiries or medical examinations during employment unless they are job-related and consistent with business necessity. Generally, a disability-related inquiry or medical examination of an employee is job-related and consistent with business necessity when an employer has a reasonable belief, based on objective evidence, that:
- An employee’s ability to perform essential job functions will be impaired by a medical condition; or
- An employee will pose a direct threat due to a medical condition.
- An employer’s reasonable belief must be based on objective evidence obtained, or reasonably available to the employer, prior to making a disability-related inquiry or requiring a medical examination.
While the EEOC has yet to issue any new guidance as it relates to the Coronavirus, its 2009 Guidance in the wake of the H1N1 outbreak provides pertinent information for employers concerning application of the ADA during pandemics. In particular, the 2009 Guidance provided a number of examples and answers to frequently asked questions concerning employer compliance with the ADA before, during, and after a pandemic. The following is a summary of some of those responses and guidelines:
Requiring employees to leave work: Employees who become ill with symptoms of a pandemic should leave the workplace. Advising such workers to go home is not a disability-related action if the illness is akin to seasonal influenza or the 2009 spring/summer H1N1 virus. Additionally, the action would be permitted under the ADA if the illness were serious enough to pose a direct threat.
Asking about symptoms: ADA-covered employers may ask such employees if they are experiencing symptoms, such as fever or chills and a cough or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.
Taking employee’s temperature: Generally, measuring an employee’s body temperature is a medical examination. If the pandemic is severe or becomes widespread in the community as assessed by state or local health authorities or the CDC, then employers may measure employees’ body temperature. However, employers should be aware that some people who are suffering from the disease causing the pandemic, may not have a fever.
Questioning employees upon return from travel: Employers can question employees about recent travel or potential exposure to the disease causing the pandemic after they return from travel, which would not be disability-related inquiries.
Questioning employees who are not showing symptoms: Generally, making disability-related inquiries or requiring medical examinations of employees without symptoms is prohibited by the ADA during a pandemic. However, if the pandemic becomes more severe or serious according to public health officials, employers may have sufficient objective information from public health advisories to reasonably conclude that employees will face a direct threat if they contract the disease causing the pandemic.
Questioning employees on absence when medical reason is suspected: This is lawful. Asking why an individual did not report to work is not a disability-related inquiry. An employer is always entitled to know why an employee has not reported for work.
Telework: Telework is an effective infection-control strategy that is also familiar to ADA-covered employers as a reasonable accommodation and should be encouraged by employers.
Requiring vaccinations: Requiring employees to get vaccinated is prohibited. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine, which would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Generally, ADA-covered employers should consider simply encouraging employees to get vaccinated rather than requiring them to do so.
Requiring doctor’s note upon return to work: Employers may require that employees who have been away from work during a pandemic to provide a doctor’s note certifying fitness to return to work. However, employers must realize that doctors or other healthcare professionals may be extremely busy during a pandemic thereby delaying such certifications. Employers may have to adopt other approaches to verify fitness to return to work (e.g., an informal e-mail, etc.)
In addition to the above, the EEOC highlighted the concept of “direct threat” as an important concept during a pandemic, since it is a valid exception to the prohibition on disability-related inquiries or medical examinations. If the CDC or state or local health authorities determine that the pandemic is severe, the assessment by such authorities may provide the objective evidence needed to establish a direct threat or otherwise conduct a disability-related inquiry or medical examination.
While workers in some industries are at greater risk of Coronavirus exposure than others, there is some risk to workers across all industries due to the ever-more-rapid spread of the virus across the United States. Employers should ensure that they have strategies in place that meet their OSHA and ADA obligations, and to protect workers from Coronavirus exposure.