- Adopting a rolling return to work by first recalling those workers who either cannot perform their positions remotely or whose on-site presence is more essential or useful to the business, while allowing the remainder of the employees to continue to work remotely. This approach has a number of benefits, including limiting the number of employees who are exposed to one another during the initial reopening phase and allowing employers to road test their safety precautions and social distancing requirements with a smaller group of employees and make appropriate adjustments.
- Starting slowly by initially reopening with one shift and then adding shifts, modifying work operations and shifts so as to stagger workers across shifts. For example, an employer that normally operates one daytime shift can split workers into two or three shifts over a 24-hour period.
- Establishing worker cohorts (groupings), which may reduce the risk of workplace transmission by minimizing the number of different individuals who come in close contact with each other.
- Staggering arrival, break, and departure times to avoid congregations of workers at the entrance to the workplace, near time clocks, and in parking areas, locker rooms and break rooms.
To the extent employers must recall or rehire employees who were furloughed or laid off, they must decide which employees, if any, to bring back and whether to do so on a part-time or full-time basis. In doing so, employers should ensure that they have a well-documented business justification for their selections and must not discriminate—either intentionally or because of a disparate impact—against workers in protected classes.
In unionized settings, employers should consult applicable collective bargaining agreements and other agreements with the union to determine if any provisions dictate a particular order for recalling employees who are members of the union.
In assessing return-to-work plans, employers may also decide that certain employees can work remotely full-time and do not need physical space in the workplace to perform their jobs. Employers may thus wish to transition those employees to permanent remote employees but should implement procedures to ensure proper monitoring of hours worked and time reporting to reduce the risks of unnecessary overtime work and related liability exposure.
Employers should be prepared to refer employees to employee assistance program (EAP) resources, if available, and community resources as needed, particularly if employees are returning to work after dealing with COVID-related illnesses or deaths in their families.
3. Address Employee Concerns Associated with Returning to Work
Employers should anticipate that some employees may be reluctant to return to work for fear of exposure to the virus, particularly if they or their family members are in high-risk groups (e.g., 65 and above, co-morbidities, compromised immune system, or pregnant). In a recent technical assistance document, the Equal Employment Opportunity Commission (EEOC) explained that the Americans with Disabilities Act (ADA) does not require an employer to take action if such an employee does not request a reasonable accommodation.
The EEOC further explained that an employer who is concerned that an employee’s health may be jeopardized upon returning to the workplace cannot exclude or otherwise take adverse action against the employee solely because the employee has disabilities that may, according to the CDC, place him or her at higher risk related to COVID-19. Instead, an employer may exclude an employee from returning to the workplace only if, after an individualized determination, the employee’s returning to the workplace poses a “direct threat” (i.e., a significant risk of substantial harm) to his or her own health that cannot be eliminated or reduced by a reasonable accommodation that would not cause undue hardship to the employer.
Employees’ reluctance to return to work extends beyond those who may have known disabilities or serious health conditions. Given how widespread COVID-19 has become, employers need to prepare for employees who have no heightened risk of contracting the virus but nonetheless express their fears of returning to work. In that regard, a generalized fear of contracting the virus is insufficient; employees are entitled to refuse to work only if they subjectively believe they are in “imminent danger” under the federal Occupational Safety and Health Act and their belief is objectively reasonable. An “imminent danger” means a danger which could reasonably be expected to cause death or serious physical harm immediately or before OSHA can eliminate such danger through its enforcement procedures. For imminent danger caused by a “health hazard,” the employee must reasonably expect that (1) toxic substances or other health hazards are present and (2) exposure to them will shorten life or substantially reduce physical or mental efficiency. The threat must be immediate or imminent, although the harm caused by a health hazard does not need to happen immediately.
As with ADA-related accommodation issues, each employee may have unique circumstances. As a result, employers should consider an employee’s concerns about returning to work carefully rather than reflexively rejecting them. An employee’s concerns may also implicate serious health conditions under the Family and Medical Leave Act (FMLA) or newly enacted state leave laws related to COVID-19.
Employers should also anticipate that other employees may be unable to return to work unless they can find suitable child care alternatives, as it appears that schools in many areas of the country will not resume until the fall. There will be additional challenges for parents over the summer months, as it is likely that summer school, camps and other recreational opportunities will be unavailable. As we discussed in a prior Legal Update and related supplemental Legal Update, employers must be attentive to recently enacted laws, such as the federal Families First Coronavirus Response Act (FFCRA) and related state laws that impose obligations on certain employers when employees are unable to work (or return to work) because of, among other things, school closings or the unavailability of child care.
In addition, employers should anticipate that other employees (e.g., those with a disability and pregnant employees) may request to work from home as an accommodation. Employers will need to engage in the “interactive process” with the employee in each such instance. The EEOC has identified working from home as a potential reasonable accommodation in light of the COVID-19 pandemic, assuming it does not impose undue hardship on the employer. Still other employees may request leave under the FMLA, FFCRA and/or related state laws to work from home in order to care for family members impacted by COVID-19.
To the extent possible, employers should try to be understanding and flexible in addressing their employees’ concerns while being mindful of the employers’ rights and obligations under applicable federal, state and local laws. Many employers may see a substantial uptick in the burdens faced by their human resources departments to address the needs and circumstances of individual employees. Establishing protocols now to address accommodation requests, for example, may alleviate some of those upcoming burdens.
4. Evaluate Potential Testing and Other Screening Measures for Returning Employees
As we outlined in a prior Legal Update, the ADA generally prohibits employers from requiring medical examinations or making disability-related inquiries of employees unless they are job-related and consistent with business necessity. The World Health Organization’s declaration of COVID-19 as a pandemic, coupled with acknowledgments by the CDC and other public health authorities of community spread of the virus, led the EEOC to provide a technical assistance document about workplace testing and health-related inquiries related to COVID-19. However, some ambiguities remain. Employers need to be mindful of both the practical and legal limitations related to testing as they assess how best to reopen their workplaces and how long to continue implementing workplace screening measures.
Any testing or other form of health screening needs to be implemented carefully. For example, employers should consider contracting with qualified third parties to administer the testing as well as securing, if desired, additional insurance coverage. By doing so, employers may be able to negotiate favorable commercial terms (e.g., indemnification provisions) or otherwise reduce potential liability risks associated with the administration of the tests and the test results. Those employers who decide to use their own personnel to conduct testing of returning employees should ensure that such personnel are properly trained in how to perform the tests and protect themselves. Employers must recognize that those conducting the tests may be at greater risk of contracting the virus, such that providing them with appropriate personal protective equipment (PPE) is critically important.
Any testing must also be implemented in a non-discriminatory fashion and with appropriate confidentiality and privacy requirements in mind. If possible, the tests and/or screening questions should be administered in a private area. If temperature test results or answers to screening questions are recorded, all such information must be treated as confidential medical information under the ADA, maintained separate from personnel records, and shared only with members of management who have a need to know. Employers should also be mindful of state requirements regarding collecting and maintaining records of employee health information, such as the California Consumer Privacy Act (CCPA) and the Illinois Personal Information Protection Act (PIPA).
In addition, there should be an adequate number of temperature check stations so that social distancing can be maintained, and employers must be mindful of potential wage and hour liabilities related to “waiting time” claims associated with waiting in line to take such tests.
There are at least three different types of tests, plus health screening inquiries, that employers might consider requiring of employees:
Temperature Checks: Employers may consider measuring employees’ and new hires’ body temperatures before allowing them to enter the workplace. In its technical assistance document on COVID-19, the EEOC confirmed that employers may measure employees’ body temperatures before allowing them to enter the workplace. Employers should set a temperature screening threshold over which an employee will not be permitted to enter the workplace under any circumstances. A safe threshold to adopt is 100.4 degrees, which comports with the CDC’s guidance. If possible, the employer should use touchless thermometers to avoid the need to disinfect oral or other types of thermometers after each use.
Employers might also wish to consider requiring employees to test themselves before they leave for work and to refrain from coming to work if their temperature exceeds a specific threshold, such as 100.4 degrees. The EEOC’s guidance does not address this option.
Testing for COVID-19: As COVID-19 testing becomes more readily available, employers may wish to consider conducting testing for the virus before permitting employees to return to work or new hires to begin work. The EEOC recently added information to its technical assistance document to specify that employers may take steps to determine if employees entering the workplace have COVID-19 because infected employees may pose a “direct threat” to the health of others. Accordingly, the EEOC has stated that “an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.” But the EEOC has cautioned that, consistent with the ADA, “employers should ensure that the tests are accurate and reliable.” And since no testing is perfect, and there may be false positives and false negatives associated with any form of testing, the EEOC suggests that employers “may wish to consider the incidence of false-positives or false-negatives associated with a particular test.” The EEOC further notes that employers should keep up-to-date on guidance from the CDC or other public health authorities, as well as the US Food and Drug Administration (FDA), “about what may or may not be considered safe and accurate testing.” If an employer implements testing for COVID-19, the EEOC noted in its technical assistance document that the employer may disclose the name of any employees who test positive for COVID-19 to a public health agency.
Antibody Testing: Antibodies are proteins that may help in fighting off infections. A serology or antibody test can measure the amount of antibodies present in the blood when the body is responding to a specific infection, such as COVID-19, which may detect whether the body is immune to the infection. Accordingly, some employers may wish to test employees to determine whether they have antibodies to COVID-19. The FDA has issued a series of questions and answers on serology/antibody testing, in which it has cautioned against reliance on antibody testing: “Based on the underlying scientific principles of antibody tests, we do not expect that an antibody test can be shown to definitively diagnose or exclude COVID-19 infection.” This information is important because, as noted above, the EEOC has cautioned employers to ensure that testing for COVID-19 is accurate and reliable; the same principles should apply to any contemplated testing for antibodies. The EEOC has not yet opined on whether specific testing for antibodies is permissible under the ADA. We recommend that employers refrain from considering antibody testing unless and until, at minimum, the FDA and/or CDC identify a reliable and accurate test. Even then, as with any form of testing, employers will need to be mindful of the risks of false positives and false negatives, particularly for COVID-19, which may be carried by completely asymptomatic employees.
Questions That Screen for COVID-19 Symptoms: In addition to permitting temperature testing and testing for COVID-19, employers may wish to screen employees entering the workplace by asking them if they have commonly accepted symptoms associated with COVID-19. The EEOC’s technical assistance document, for example, permits employers to rely on guidance from the CDC, other public health authorities, and “reputable medical sources for guidance on emerging symptoms associated with the disease.” The CDC, for its part, also advises employers to “consider conducting daily in-person or virtual health checks (e.g., symptom and/or temperature screening) before [employees] enter the facility, in accordance with state and local public health authorities and, if available, your occupational health services.”
The ideal back-to-work solution, of course, would be a vaccine that prevents employees from contracting (or re-contracting) the virus. But many public health officials have opined that an approved vaccine, if any, will not be forthcoming in the near future, thereby requiring employers to make appropriate adjustments to protect their workforces. Notably, employers should keep in mind that even if a vaccine ultimately becomes available, an employer may not necessarily compel employees to take the vaccine. The EEOC has advised that an employee “may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents [the employee] from taking the influenza vaccine.” The EEOC has further advised that under Title VII of the Civil Rights Act of 1964, “once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (i.e., ‘more than de minimis cost’ to the operation of the employer’s business, which is a lower standard than under the ADA).”
5. Implement Additional Safety Precautions in the Workplace
Employers should also implement additional measures to prevent the spread of COVID-19 in the workplace. Strategies that businesses can use include:
Conducting Workplace Hazard Assessments: The CDC recommends that employers identify where and how workers might be exposed to COVID-19 in the workplace by conducting a thorough hazard assessment, in accordance with OSHA standards. The CDC and National Institute for Occupational Safety and Health have developed a hierarchy of controls, “including engineering controls, workplace administrative policies, and personal protective equipment (PPE) to protect workers from the identified hazards.” The CDC notes that when engineering and administrative controls cannot be implemented or are not fully protective, employers are required by OSHA standards to determine what PPE is needed for their workers’ specific job duties, select and provide appropriate PPE to the workers at no cost, and train their workers on its correct use.
Facilitating Social Distancing: The CDC recommends that employers establish policies and practices for social distancing (i.e., physical distancing of at least six feet between individuals). To do so, employers should consider reconfiguring communal work environments so that workers are at least six feet apart in all directions and should close or limit access to common areas where employees are likely to congregate and interact. Employers should consider posting signs, putting marks such as decals or colored tape on the floor, or implementing other visual cues to remind employees to maintain social distance. Employers should also assess whether it is feasible to install physical barriers such as plexiglass, strip curtains or other impermeable dividers or partitions between employees to separate them from each other and prevent the potential spread of the virus.
Social distancing also means that certain places within the workplace (e.g., lunch or break rooms) may need to be used in shifts or limited to a certain number of employees at a given time. Alternative common areas (e.g., patio or other outdoor spaces) may need to be considered. Social gatherings, such as lunches or birthday celebrations, likely will need to be suspended or conducted virtually within the workplace. Access to restrooms will also need to be monitored carefully so that only the number of employees that the space can accommodate with social distancing can enter at one time.
Implementing Vertical or Departmental Separation: Depending on the footprint of the workplace, employers may want to consider taking social distancing one step further and restricting access between employees on different floors of a building or in different departments or other geographical areas. If so, employers should consider reconfiguring key card access to accomplish this objective. At the same time, employers should consider staggered work days, even on the same floor, if, for example, a critical infrastructure team (such as the IT department) all works on the same floor. By switching up work days at the office, an outbreak may not result in quarantining an entire department.
Reconfiguring Space: Employers should examine each space within the workplace in the context of social distancing and consider removing furniture to force compliance. For example, in a lobby or waiting room, consider placing chairs six feet apart and removing sofas. In conference rooms and other large areas where groups previously met, removing chairs may accomplish social distancing. Employees should not share offices or cubicles; if that is not possible, separate desks and workspaces or install higher barriers. Employers in manufacturing plants will need to consider reconfiguring or retooling production lines so that workers are not working shoulder to shoulder or directly across from one another.
Enhancing Disinfection and Cleaning Protocols: Employers should review their cleaning operations to ensure that frequently touched surfaces (e.g., elevator call buttons, stair railings, door knobs, copy machines, countertops, light switches, phones, keyboards, time clocks, lockers, kitchen appliances, toilets, and faucets) are disinfected more frequently during the pandemic. The CDC has issued recommendations (“Cleaning and Disinfecting Your Facility”) to employers for cleaning and disinfecting the workplace. Depending on the work environment, employers may need to coordinate this effort with their landlords or tenants. Employers who have hoteling arrangements for remote or other employees should consider suspending use of such arrangements by multiple employees or having those workspaces disinfected thoroughly between each use of the space by a different employee.
It also is important to make sure that cleaning personnel are properly trained and equipped to ensure that they are disinfecting all frequently touched areas and that they have appropriate PPE to avoid contracting the coronavirus while cleaning. Employers should review the cleaning products being used and confirm that they are appropriate for the work area. If the employer learns that an infected employee or other person has been in the workplace, the employer should also contract for additional deep-cleaning and sanitizing services to prevent the spread of the virus.
Changing Crowd Flow: Employers should look at crowd flow in the workplace and consider designating one-way entrances/exits and corridors or aisles as has been done in grocery stores.
Revamping Communal Eating and Exercise Practices: Employers should consider disallowing, at least temporarily, common use areas for food storage, such as refrigerators, and common use machines for beverage consumption, such as water coolers and coffee machines. If employers provide meals on-site, they should consider replacing any self-serve lines with individually boxed meals. Consideration should also be given to having a gloved and masked employee be responsible for handing out boxed meals and/or dining supplies to employees rather than risk having the employees touch them at the source.
Employers with workout rooms or gyms or other recreational equipment on their premises should not reopen them for employee use until permitted to do so by state or local order. Once reopened, those areas should be subjected to strict social distancing requirements and increased disinfection practices.
Reinforcing Good Hygiene Practices: As discussed in a prior Legal Update, the “General Duty” clause of the Occupational Safety and Health Act generally requires employers to provide employees with a safe and healthy workplace that is free from recognized hazards that are causing or likely to cause death or serious physical harm and to comply with the statute’s other occupational safety and health standards.
Accordingly, employers should remind returning employees to take basic preventive measures and safety precautions that may help to reduce the risk of contracting COVID-19 or spreading it in the workplace, including following updated recommendations from the CDC as well as certain basic steps:
- Frequently washing their hands thoroughly with soap and water for at least 20 seconds or using an alcohol-based hand sanitizer that contains at least 60 percent alcohol;
- Avoiding touching their eyes, nose and mouth;
- Covering sneezes or coughs with tissues, if possible, or else with a sleeve or shoulder;
- Avoiding close contact with people who are sick;
- Staying home when sick;
- Cleaning and disinfecting frequently touched surfaces and objects; and
- Avoiding sharing offices or equipment (e.g., telephones and keyboards).
To facilitate these practices, it is critical that employers maintain adequate supplies in the workplace, including tissues, soap, alcohol-based hand sanitizer that contains at least 60 percent alcohol, and hand wipes. Many of these items are now in short supply due to increased demand, so employers need to ensure that they have a reliable vendor who can meet their needs. The CDC has also recommended that employers provide no-touch disposal receptacles for use by employees, place no-touch sanitizer dispensers in multiple locations or in conference rooms to encourage good hand hygiene, and provide employees with disposable wipes so that they can wipe down commonly used surfaces before each use.
Personal Protective Equipment and Training: Employers need to consider what PPE (or additional PPE) to require employees to wear when entering the workplace and while working in areas where social distancing is not possible. The CDC’s guidance on Cleaning and Disinfecting Your Facility includes additional considerations for employers, including developing policies for worker protection and providing trainingto all cleaning staff on site in advance of resuming cleaning tasks. The CDC notes that an employer’s training should include when to use PPE, what PPE is necessary, how to properly don and doff PPE, and how to properly dispose of PPE.
In addition, the CDC now recommends that individuals wear cloth face coverings “in public settings where other social distancing measures are difficult to maintain (e.g., grocery stores and pharmacies), especially in areas of significant community-based transmission.” The CDC recommends wearing a cloth face covering as a measure to contain the wearer’s respiratory droplets and help protect their co-workers and members of the general public. But, as the CDC has cautioned, “[c]loth face coverings are not considered PPE. They may prevent workers, including those who don’t know they have the virus, from spreading it to others but may not protect the wearers from exposure to the virus that causes COVID-19.” Cloth face coverings also are not a substitute for social distancing. A number of states and cities now require that individuals wear a mask or other face covering in order to enter the workplace, with more states and cities likely to follow suit.
While many transactions can be accomplished virtually and documents can be signed electronically, there are other business dealings (e.g., grocery and other retail purchases) that may need to be handled in person. In those circumstances, employers should be prepared to supply or reimburse employees for additional PPE such as gloves, wipes, and sneeze guards. Where PPE must be used and then discarded, the employer should provide touchless waste cans for that purpose.
If an employer requires an employee to wear PPE, the employer must provide the PPE or agree to reimburse the employee for the expense. If providing PPE to employees, the employer must ensure that it has adequate supplies to do so.
Air Filters: While there is no evidence that air filtration alone will prevent COVID-19, given that it is an airborne illness, employers should consider having their heating, ventilating and air-conditioning (HVAC) systems inspected and filters changed before bringing employees back into the workplace. Employers may have to coordinate with their landlord/tenants to accomplish this. As the Environmental Protection Agency has noted, the American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) has issued guidance to help address COVID-19 concerns regarding the maintenance and operation of HVAC systems.
6. Assess Potential Changes to Policies on Nonessential Business Travel
The CDC currently recommends that travelers avoid all nonessential international travel, including to most European countries, among others. The State Department likewise advises US citizens to avoid all international travel due to the global impact of COVID-19.
As employers look to reopen their businesses, they should assess whether to place limits on nonessential business travel until the pandemic passes in order to reduce employees’ potential exposure to COVID-19 and the risk that they may carry the virus asymptomatically back to the workplace. The pandemic has been instructive in highlighting for employers that many in-person meetings may be unnecessary and can be conducted via videoconference, eliminating the need for a good deal of business travel.
7. Quarantine Returning Employees Who Exhibit COVID-19 Symptoms
Individuals with COVID-19 have displayed symptoms ranging from mild discomfort to severe illness. The CDC has indicated that symptoms usually appear 2 to 14 days after exposure to the virus. The CDC currently advises that individuals with the following symptoms (or combination of symptoms) may have COVID-19: cough, shortness of breath or difficulty breathing, fever, chills, muscle pain, sore throat, or a new loss of taste or smell.1 If, upon or after the workplace reopening, an employee returns to it exhibiting any of these symptoms, the employer should send the employee home until the employee has satisfied the CDC’s criteria to discontinue home isolation and has consulted with a healthcare provider and the applicable state or local health department. Employers should also have a policy in place to govern contact tracing and provide guidelines regarding notifying other employees of potential workplace exposure.
8. Restrict Visitors and Vendors
Employers should consider restricting all but essential visitors to the workplace. Essential visitors should be unaccompanied (e.g., by friends, family and drivers) when entering the workplace and should be required to wear masks or other face coverings in order to enter the workplace. In addition, employers should consider implementing the following measures:
- Requiring all visitors to undergo the same types of testing and health screenings as are required for employees;
- Requiring all visitors (including vendors and delivery persons) to wear facial coverings;
- Assigning, if possible, a particular conference room to be used for meetings with visitors so that they have limited exposure to the broader worksite and disinfecting that area after the end of each visit; and
- Designating, to the extent feasible, a delivery area where packages and other deliveries are accepted, limiting contact with vendors or delivery persons to specific employees.
An employer should also require visitors and vendors to sign in and provide contact information so that, in the event they are exposed to COVID-19 while in the workplace, the employer can notify them. If the employer becomes aware that a visitor or vendor has contracted COVID-19, the employer should conduct contact tracing to identify those employees with whom the visitor or vendor came in contact while at the workplace so that appropriate follow-up and quarantining can be assessed.
9. Train Employees About Workplace Changes and Communicate and Reinforce Policies and Best Practices
An employer should be communicating openly and often with the workforce so that employees have the information they need to help keep themselves educated, trained and updated about the employer’s reopening plans and new requirements for entry to the workplace. Further, reinforcing company policies and procedures related to good hygiene, working remotely, safety precautions, temperature tests and health screening, restricted business travel, and required quarantines is an effective method to demonstrate to your workforce that you are monitoring developments carefully and working to keep everyone healthy and safe. Soliciting direct input and suggestions from employees in your specific workplace may help further reduce the risk of transmission of the virus in ways that the management team may not have anticipated.
As part of those communications, we recommend that employers continue to provide employees with additional resources (such as advance notifications of changes in policies and procedures) so that employees learn more about the situation as it develops and can prepare effectively. This is especially important for employees who will be returning to a workplace that may be reconfigured very differently and/or may have fewer employees as a result of furloughs or layoffs. Employees also may have to break old, otherwise innocuous habits that never were a concern prior to the COVID-19 outbreak. And undergoing daily temperature tests or other health screens before entering a workplace is unprecedented for most employees, so training them about workplace changes and setting expectations in advance of their arrival may facilitate a smoother transition for many employees once they return to the workplace.
Regular communication helps not only to educate employees on best practices in the workplace but also to dispel myths and unfounded rumors about COVID-19 and its potential impact on employees returning to the workplace. Employers that do not engage in such communications with their employees may be perceived, rightly or wrongly, as uncaring and ill-prepared to comply with their obligations under OSHA to provide a safe and healthful workplace. Such employers may also experience a greater number of potentially unnecessary employee absences.
OSHA guidance encourages employers to provide their employees with up-to-date education and training regarding COVID-19 risk factors and protective behaviors. There may be additional state and local requirements depending on the jurisdiction where the workplace is located.2
10. Be Mindful of Important Privacy Issues
Employers who are interfacing with employees in preparing for reopening and protecting their workforce from the spread of COVID-19 may receive different types of employee medical information. Such information often must be treated as confidential under state and federal law, and employers therefore should ensure that they implement appropriate measures to protect the privacy of employee medical information. For example, discussions of reasonable accommodations and leaves of absences related to COVID-19 should be treated as confidential and shared by an employer only with those personnel who have a need to know. Further, as discussed in Section 4 above, the administration of employee health screenings via questionnaires, temperature screenings, COVID-19 testing and required self-reporting obligations should be conducted in such a way as to safeguard employee privacy. This should include keeping information relating to test results, employee responses to screening questions, and any other related medical information collected from employees confidential. Employers should also be mindful of state and local privacy laws relating to the collection and storage of employee personal information in implementing any screening policies and procedures. Further, employers should determine whether to keep a record of medical information learned from the screening procedures.
Employers should not disclose to other employees—prior to, during or after reopening—the names of any employees who have tested positive for COVID-19 or exhibited symptoms consistent with the virus. This is true even as to the results of tests or the answers to screening questioning that the employer itself has not undertaken. Maintaining the confidentiality of all such information is consistent with the EEOC’s guidance in its technical assistance document and is important even though an employer is not a “covered entity” under the Health Insurance Portability and Accountability Act (HIPAA).3
Similarly, while an employer will need to quarantine an employee who returns to work and tests positive for COVID-19 upon reopening (or indicates that he or she recently tested positive for COVID-19), the employer should share the employee’s name only with a public health agency, not with co-workers.
11. Be Prepared to Do It All Over Again
Employers need to be mindful of warnings by public health officials that there may be spikes in COVID-19 cases in the months to come or a second wave of cases in the fall or winter, in which case, employers may once again need to implement emergency measures with little warning from state and local governments. Accordingly, employers should consider what actions to take now in order to prepare for a potential sequel to the unanticipated events of earlier this year. In some industries (such as travel and hospitality), there may be a more prolonged contraction before business rebounds to levels that preceded the outbreak. Careful planning by employers now may help to mitigate problems and risks in the unfortunate event of another shutdown in the months to come. As part of their efforts to plan, employers should review their expense reimbursement and teleworking policies to ensure that they are up-to-date, reflect their business needs, and comply with applicable law.
As they gradually reopen their businesses, employers should implement protocols for screening returning employees, adopt enhanced safety precautions to maintain social distancing and avoid the spread of COVID-19, restrict access of vendors and employees, and communicate and train employees regarding new policies and procedures. Employers should also consult with their labor/employment counsel with any questions.
* * *
For more information on issues related to reopening of businesses, please see our Legal Update discussing how all US employers should consider recent joint guidance from OSHA and the CDC on safe workplace practices in the meat and poultry industries.
Additional insights for employers navigating through COVID-19 developments are available in Employment Law articles on our COVID-19 Portal.
If you wish to receive regular updates on the range of the complex issues confronting businesses in the face of the novel coronavirus, please subscribe to our COVID-19 “Special Interest” mailing list.
And for any legal questions related to this pandemic, please contact the authors of this article or Mayer Brown’s COVID-19 Core Response Team at FW-SIG-COVID-19-Core-Response-Team@mayerbrown.com.
1 The CDC has noted that additional, less common symptoms of COVID-19 also have been reported, such as gastrointestinal symptoms such as nausea, vomiting or diarrhea.2 The federal Occupational Safety and Health Act applies in all 50 states and covers most private-sector employers. Employers should be mindful that 21 states plus Puerto Rico also have OSHA-approved “State Plans” that apply to private-sector employers. State Plans have their own “penalty reduction policies and procedures that may differ from [the federal standard] but must be deemed at least as effective,” and State Plans have their own procedures for appeals, penalties and abatement periods.
3 Employers should be mindful, however, that employer-sponsored group health insurance plans are covered entities under HIPAA.