COVID-19 RETURN-TO-WORK POLICIES: Employer's Duty to Provide a Safe Workplace
As businesses prepare to welcome employees and visitors back into their workspace, it is important to have a Return-to-Work Policy that protects the health of individuals and guards against potential coronavirus-related litigation. Employers will want to illustrate they are providing a safe work environment while still following EEOC laws, which continue to apply during the COVID-19 pandemic.
Employers have a duty to furnish a place of employment “free from recognized hazards that are causing or are likely to cause death or serious physical harm” as required by Section 5(a)(1) of the Occupational Safety and Health (OSH) Act of 1970, 29 USC 654(a)(1). Walmart is already facing a wrongful death lawsuit for allegedly not screening employees for COVID-19, not providing protective equipment, not enforcing social distancing, and not properly cleaning the store at issue in the lawsuit. A thorough Return-to-Work Policy will address all of these areas to protect against similar allegations that an employee has contracted COVID-19 at their workplace due to their employer’s reckless disregard of CDC guidelines.
Monitoring the Workforce for COVID-19
The Trump administration’s “Guidelines for Opening Up America Again” recommend employers “[m]onitor workforce for indicative symptoms. Do not allow symptomatic people to physically return to work until cleared by a medical provider.” The guidelines, which are not legal mandates, specifically suggest employers consider temperature checks.
EEOC guidance states that because “the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions as of March 2020, employers may measure employees' body temperature. As with all medical information, the fact that an employee had a fever or other symptoms would be subject to ADA confidentiality requirements.” Temperature checks of employees are normally prohibited under the ADA in most cases. An employer may also utilize employee health questionnaires regarding COVID-19 at this time. If employers utilize these or other screening measures, the safest course of action is to compensate hourly employees for screening time.
An employer may not use information obtained from an employee medical examination or inquiry to discriminate against the employee and may want to keep this health information separate from an employee’s personnel file. Employers who are considering “right-sizing” staff or making pay adjustments should document their decision-making rationale in the event of ADA discrimination or pay equity claims.
Protective Equipment and Social Distancing
Many employers have questions about whether they should encourage or mandate that employees wear face masks, which the CDC now recommends be worn in public settings where other social distancing measures are difficult to maintain. The answer may vary by jurisdiction, and businesses should assign someone to stay abreast of state and local orders. In Louisiana, all employees of a business who have contact with the public must wear a mask or face covering, per the May 1 changes to the state Stay-at-Home order. Employers should note that OSHA has a PPE Standard that may apply to cloth face coverings as well as applying to gloves and other PPE, and an even higher Respiratory Protection Standard that applies to N95 masks (N95 masks should be reserved for healthcare workers at this time). Per OSHA, if an employer requires employees to wear a mask or other PPE, it must provide the equipment free-of-charge and provide training regarding use and care of it, as well as performing a hazard assessment and meeting other criteria. While OSHA has expressed it will exercise discretion in enforcement in light of the COVID-19 pandemic, employers must make a good faith effort to comply with OSHA standards.
Social distancing requirements should be a part of any Return-to-Work Policy to illustrate an employer is working to provide a safe workplace. Some social distancing tactics to consider include moving desks or work stations, closing break rooms and other common areas, staggering shifts or breaks, making hallways one-way, and of course limiting non-essential face-to-face meetings and unnecessary business travel. Installing plexiglass guards and social distancing floor decals are becoming increasingly common in retail settings. Employers should remind employees not to gather in groups at work and determine ahead of reopening if and how employees who are non-compliant with the Return-to-Work Policy will be disciplined.
The CDC has provided reopening guidance for cleaning and disinfecting businesses. If an infected person has visited or works at a business, the CDC states the business should close off the areas used by the person who is sick, but does not necessarily have to close. After waiting 24 hours the area should be cleaned and disinfected, at which point it can be open for use again. If it has been more than 7 days since the person with suspected/confirmed COVID-19 visited or used the facility, additional cleaning and disinfection is not necessary. While the phrase “deep cleaning” is frequently used in regard to COVID-19, it does not have a standard scientific meaning. However, more frequent cleaning and disinfection of high-touch areas should be a part of a Back-to-Work Plan during the pandemic.