Employers have a legal obligation to provide a safe workplace free from recognized hazards that could cause serious injury or death. Employers should be giving thought to how they will prepare the workplace for the safe return of employees now that the Safer-At-Home Orders are no longer in effect. An employer’s return-to-work plan will depend on a number of factors, including the nature of the employer’s business, the needs of its employees, and the prevalence of COVID-19 in the community in which the employer’s business is located.
Although each plan will be tailored to the employer’s particular business needs, there are common precautions and considerations that employers should be thinking about as they develop and implement a return-to-work plan for their business. This article is the first part of a two-part blog that discusses key issues for employers to consider in returning employees to the workplace.
Gradual Return to Work
It may be risky to bring all employees back to the workplace in one fell swoop. If a single employee becomes ill with the virus, this could result in widespread workplace exposure and could result in a shortage of employees and disruption to the employer’s business operations. Employers may want to take a more cautious and gradual approach in bringing employees back to the workplace. Employers may decide to add work shifts to limit the number of employees on a single shift; to continue to have some employees work remotely; and/or to have employees work on-site for partial days, on alternating days, or in alternating weeks for a period of time.
Fearful Employees Who Refuse to Return to the Workplace
If employees are called back to the workplace, but refuse to return to work based on a generalized fear of contracting COVID-19, this could constitute a resignation of employment by the employee. When an employee has refused to return to the workplace, this could also jeopardize the employee’s ability to get unemployment insurance benefits because there is work available and the employee has refused that work.
If the employee’s concern about returning to work is due to the employee’s age or an underlying medical condition making the employee more vulnerable to serious illness or death if exposed to the virus, then the employer may have the obligation to allow the employee to continue to work remotely or to provide a leave of absence under the Americans with Disabilities Act, the FMLA and/or their state law counterparts.
Employees may have a valid reason for refusing to return to work if the workplace is not safe. Employers should be taking precautions and should be implementing and enforcing policies and procedures to help keep the workplace safe and to reduce the risk of workplace exposure and spread. Having these policies and procedures in place should help to alleviate or reduce employee concern about returning to the workplace. OSHA has developed detailed and helpful guidance which discusses measures for protecting the workplace through Engineering and Administrative Controls, Safe Work Practices, and the provision of appropriate Personal Protective Equipment. OSHA’s guidance can be accessed here.
Wellness Screening for Employees Working On-Site
Because COVID-19 poses a direct threat to those in the workplace, employers have more leeway in making medical inquiries and requiring medical examinations of employees during this pandemic. Employers are permitted to implement a daily wellness screening for employees who will be physically entering the workplace. Employers may take the temperature of employees and ask them questions about COVID-19 symptoms, COVID-19 test results, and/or recent contact (in the last 14 days) with persons who either have a confirmed case of COVID-19 or are experiencing symptoms of COVID-19. The CDC’s list of COVID-19 related symptoms, about which the employer may inquire, consists of the following:
- Shortness of breath or difficulty breathing
- Fever (100.4 or higher)
- Sore throat
- New loss of taste or smell
- Congestion or runny nose
Other possible COVID-19 symptoms, as listed on the CDC’s website, are chills, muscle or body aches, headache, nausea or vomiting, and diarrhea. If an employer will implement some form of daily wellness screening, it should be doing so for all employees working on-site to avoid discrimination claims.
The time that a non-exempt employee takes to complete the wellness screening may be compensable time under state and federal law. Under the ADA, employers are required to treat completed wellness questionnaires as confidential medical records. The completed questionnaires should be kept separate from the employee’s personnel information and access to the file should be limited. Employees who are not honest about their symptoms and/or exposure put the health and safety of the workforce at risk, and these employees may be subject to discipline, up to and including termination of employment.
Employers do not have the same business need for, and should not be, conducting a temperature check or a wellness screening for employees who are working remotely and are not physically present in the workplace.
Notification of Known COVID-19 Illness and Possible Exposure
If the employer becomes aware through wellness screening or otherwise that an employee has a confirmed or suspected case of COVID-19 or has had recent contact with a person who has a confirmed or suspected case, the employer should timely act to communicate that information to persons who have had known recent business contact with the infected person. Prompt communication will enable persons, who may have been exposed, to monitor their symptoms and take steps to mitigate the risk of spreading the virus to others. The employer may ask an employee who has tested positive for COVID-19 to identify persons with whom they have recently had business contact to facilitate this communication. Any health information of which the employer becomes aware should be treated as confidential and disclosure should be as limited as much as possible. The name of any infected or potentially infected person generally should not be disclosed without the person’s prior written authorization.
We’re Here to Help
McCarty Law attorneys stand ready to assist you as you make decisions and develop policies and procedures for the safe return of your employees to work.
Next week’s blog will address legal issues that arise in connection with COVID-19 related absences, reduced hours and required furlough days, how to protect the workplace from employees returning from travel or attendance at large social gatherings, and what OSHA may require in terms of reporting workplace illness/injury.
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