Months after the COVID-19 pandemic brought business to a screeching halt, all 50 states have now begun to reopen and companies are eager to get back to work. But for many employers, getting back to business means navigating a completely new set of unknowns when it comes to employees.
The Occupational Safety and Health Administration, the federal agency charged with setting the national standards for workplace safety, requires that employers provide employees a safe place to work; but legally, what does that mean in the age of COVID-19?
OSHA and the COVID-19 Pandemic
OSHA has yet to create emergency workplace standards specific to the pandemic. Instead, OSHA takes the position that its pre-pandemic standards are generally sufficient and still apply during the outbreak. Most notably, these include:
- OSHA’s General Duty Clause:This requires employers to furnish “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.”
- Personal protective equipment standards:These standards require using gloves, eye and face coverings and respiratory protection when job hazards warrant it.
- Recording and reporting occupational injuries and illness standards: COVID-19 can be a recordable illness if a worker is infected as a result of performing work-related duties. Employers are responsible for recording cases of COVID-19 if (1) the case is a confirmed case of COVID-19; (2) the case is work-related; and (3) the case involves one or more of OSHA’s general recording criteria. These include death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid or loss of consciousness. To help employers meet this requirement, OSHA has issued a guidance memo explaining how to employ its recordkeeping and recording rules.
Further, OSHA requires employers to protect workers from exposure to hazardous chemicals used for cleaning and disinfection. That means that OSHA’s hazard communication standards, personal protective equipment standards and other applicable OSHA chemical standards may apply.
There are other important OSHA standards to keep in mind depending on the type of workplace. OSHA released this guidance to reopening the workplace that employers should consult.
Investigating Potential Exposures and Positive Cases
One of the most significant questions facing employees and employers is just how much information employers may ask of employees. Currently, there is no law that requires an employee to report any exposure or potential exposure to COVID-19. This is yet another reason why businesses large and small are being advised to establish their own company policies around COVID-19 exposure. It also means these companies must carefully navigate the dos and don’ts of what they can legally ask of employees during the pandemic.
For example, while the Equal Employment Opportunity Commission has stated that an employer covered by the Americans with Disabilities Act may legally take employees’ temperatures in the workplace and conduct active-virus testing in certain circumstances, it has not applied the same rule for antibody testing.
Businesses must also continue to adhere to the rules for maintenance of employee medical information. While many companies have been able to avoid collecting medical information because the data was not considered necessary for business operations, the pandemic has all but made collecting at least some health information a requirement to having the doors open.
OSHA recently revised its Rules of Agency Practice and Procedure Concerning Occupational Safety and Health Administration Access to Employee Medical Records. It is now critical that employers get up to speed on best practices for treatment of employee medical information. (A good start is keeping any sensitive medical data separate from other employee information.)
The Question of Confirmed or Suspected COVID-19 Cases
Likely the most difficult questions for employers and employees concern the steps to take when an employee has either a suspected or confirmed case of COVID-19. What should an employer do and say if an employee tests positive? How much time must pass before the employee can safely return to work? Generally, the answer depends on the type of business and whether the company is deemed essential.
The Centers for Disease Control advises that critical infrastructure workers may continue work following potential exposure to COVID-19, provided they remain asymptomatic and additional precautions are implemented to protect them and the workplace. Potential exposure includes a household or workplace contact with a confirmed or suspected case of COVID-19. The guidance for the general public is more stringent.
The required response also depends on the type of business. The CDC has promulgated industry-specific guidance for returning to work. Presently, CDC guidance for general businesses, which was updated again earlier this month, advises that an employee who had the virus should not be allowed to return to work until meeting all the following criteria using the symptom-based approach:
- At least 10 days have passed since symptom onset;
- At least 24 hours have passed since resolution of fever without the use of fever-reducing medications, and
- Other symptoms have improved.
(Per the CDC, a limited number of persons with severe illness may produce replication-competent virus beyond 10 days that may warrant extending duration of isolation for up to 20 days after symptom onset.)
Alternatively, the CDC offers a test-based approach, but now only recommends this approach for severely immunocompromised workers. For all others, a test-based strategy is no longer recommended by the CDC except to discontinue isolation or other precautions earlier than would occur under the symptom-based strategy outlined above.
The change in CDC guidance on this topic highlights the importance of staying current on the latest guidance. The CDC is tweaking its recommendations as we continue to learn more about the virus. Employers can sign up for CDC updates, but the best practice is to monitor the website.
A Question of Consequences
OSHA’s existing regulations and standards, such as the General Duty Clause or the personal protective equipment standards, come with citations or fines for failure to comply. Prior enforcement rubrics will likely be used for enforcing pandemic guidelines.
OSHA tracks enforcement of its guidelines and publishes general case data concerning COVID-19 complaints. It also tracks whistleblower complaints related to COVID-19. While OSHA continues to enforce workplace safety during the pandemic, OSHA guidance expressly notes “because of the difficulty with determining work-relatedness, OSHA is exercising enforcement discretion to assess employers’ efforts in making work-related determinations.”
But more importantly, if precautions are not taken, an employer may unwittingly subject employees to a life-threatening risk. And of course, if an employee becomes fatally ill from workplace exposure, that employer could face a civil lawsuit. It should be noted that lawmakers are debating a proposal to provide businesses with immunity from civil liability for pandemic-related losses.
And such lawsuits have already begun. In Illinois, for example, a wrongful death lawsuit was filed against Walmart by the family of a former employee who is alleged to have contracted the virus while at work. The lawsuit contends that Walmart failed to clean and sterilize its store, implement and enforce social distancing guidelines and provide the plaintiff’s decedent with personal protective equipment. This lawsuit is expected to be a bellwether for how similar lawsuits will be treated if not precluded by statute.
In response, liability waivers concerning the risks of COVID-19 are becoming more common. In fact, President Donald Trump recently required attendees at his Oklahoma rally to sign such a waiver. At least in Texas, however, it is unclear whether a waiver of any liability flowing from a COVID-19 exposure would hold up in court under present law.
Undoubtedly, these are challenging – and sometimes confusing – issues for business leaders to navigate. And while these questions are currently the most common, they represent just a fraction of the decisions companies will be forced to make to keep their workplaces safe and open.
For this reason, employers would be well advised to seek tailored guidance from employment counsel about the application of any relevant workplace standards. It could save time, money and, most importantly, lives.
Kasi Chadwick is a senior counsel at Houston-based Hicks Thomas, where she advises businesses of all sizes in employment law litigation, litigation avoidance, and helps employers handle business-related disputes. Ms. Chadwick may be reached at kchadwick@hicks-thomas.com.