COVID-19 and Your Business: What Every Employer Needs to Know About Employees Returning to Work Post Pandemic
As business are looking to reopen in the coming weeks and months, employers are faced with new and unthinkable challenges of bringing employees safely back to work. It will hardly be business as usual.
Many states and cities have unique requirements and conditions with which employers must comply. Employers must also to rely on, in large part, the constantly evolving guidance provided by the Centers for Disease Control (CDC), Occupational Safety and Health Administration (OSHA), and the Equal Employment Opportunity Commission (EEOC). What that means for employers is that, for the indefinite future, it will be necessary for employers to comply with the most recent guidance from the CDC, OSHA, public health agencies, and the EEOC as they bring employees back to work and re-open.
That’s a lot of responsibility. So, below is a general overview of current guidance from the EEOC, OSHA and CDC concerning workplace safety and the required or recommended preventive and corrective measures that employers must consider before allowing employees to return to work. Employers should consult legal counsel to ensure that their return to work plans are tailored to fit their specific work environments and employees and satisfy the applicable legal requirements in their city and state.
The EEOC and COVID-19
The EEOC has taken the position that the non-discrimination laws it enforces (e.g., the Americans with Disabilities Act (ADA)) should not interfere with or prevent employers from following the guidance and suggestions from the CDC and state and local public health agencies. The EEOC has further instructed: “Employers should remember that guidance from public health authorities is likely to change as the COVID-19 pandemic evolves. Therefore, employers should continue to follow the most current information on maintaining workplace safety.”
The EEOC has issued guidance for the interpretation and enforcement of the ADA and the Rehabilitation Act in light of COVID-19. Specifically, the EEOC has provided:
Employers may ask employees about virus-related symptoms and may require employees to submit to temperature testing. Employers may also require employees to report a COVID-19 diagnosis to the employer.
Employers may administer COVID-19 testing to employees before they enter the workplace. Consistent with the ADA standard, employers should ensure that the tests are accurate and reliable. For example, employers may review guidance from the U.S. Food and Drug Administration (FDA) about what may or may not be considered safe and accurate testing, as well as guidance from the CDC or other public health authorities. Testing is rapidly changing, so employers stay up to date regarding the efficacy of any testing mechanism that they employ. Employers should also consider the incidence of false-positives or false-negatives associated with a particular test.
Employers may require employees with COVID-19 to leave the workplace. Employers may also require that the employee present medical certification proving fitness for duty before returning to work.
Employers may delay start dates and/or withdraw job offers if an applicant tests positive for COVID-19 and/or has COVID-19 symptoms.
OSHA Guidance on Preparing the Workplace
OSHA requires employers to comply with existing safety and health standards and regulations promulgated by OSHA or by a state with an OSHA-approved state plan. In addition, the Act’s General Duty Clause, Section 5(a)(1), requires employers to provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm.
OSHA recently issued a recommendations and guidelines for employers to consult when preparing workplaces in response to COVID-19. OSHA guidelines are advisory, except when a guideline refers to or summarizes existing OSHA standards and requirements.
Given OSHA’s existing requirements and recent guidance, employers should review the CDC recommendations (summarized below) for returning employees to work and should also think about implementing additional protective measures in the workplace. Some of these protective measures may include the following:
Require employees to practice social distancing at work (stay a minimum of 6 feet apart)
Staggered workhours.
Ensuring adequate distance between individuals in restroom stalls and urinals.
Limiting one person to a vehicle.
Install high-efficiency filters and increase ventilation rates in the workplace. Open windows where possible.
Designate one person to check employees in and out of work and/or record their arrival and departure times
Forbid sharing of work equipment including but not limited to headsets, refrigerators, microwaves, computers, iPads, desks, office supplies, tools, etc.
Keep doors propped open.
Install glass or plexiglass barriers where people have to meet to talk and exchange documents or materials.
New COVID-19 Poster from OSHA
OSHA has issued a new poster listing steps all workplaces can take to reduce the risk of exposure to coronavirus. The new poster is available for download in English or Spanish. While displaying the poster is not required, it may assist a company in showing that it took good-faith steps to comply with OSHA’s workplace safety requirements (as discussed further below).
Good Faith Efforts to Comply with OSHA Standards
In guidance issued on April 16, OSHA stated that it will evaluate whether an employer made good faith efforts to comply with applicable OSHA standards by thoroughly exploring all options to comply. An employer should be able to demonstrate a good faith attempt to meet the applicable requirements as soon as possible following re-opening. Where the employer cannot demonstrate its good faith efforts to comply, a citation may be issued.
CDC Guidance on Workplace Health and Safety
The CDC has also issued a significant amount of guidance regarding how businesses and employers should respond to the pandemic. Some key points concerning workplace safety and cleaning and disinfecting are as follows:
If an employee was present at the job site within 48 hours of testing positive, employers should follow the CDC’s cleaning and disinfecting guidelines. Cleaning staff should clean and disinfect all areas used by the ill person, especially frequently touched surfaces.
If it has been more than seven days since the person who is sick visited or used the facility, additional cleaning and disinfection are not necessary.
For electronics – such as tablets, touch screens, keyboards, remote controls, and ATMs – consider using wipeable covers. If there are no manufacturer’s instructions for cleaning and disinfecting electronics, use alcohol-based wipes or sprays containing at least 70% alcohol and dry the surfaces thoroughly.
Employers should develop policies for worker protection and provide training to all cleaning staff on-site before assigning cleaning tasks (including when to use personal protective equipment (PPE); what PPE is necessary; how to properly put on, use, and take off PPE; and how to properly dispose of PPE).
Ensure workers are trained on the hazards of the cleaning chemicals used in the workplace per OSHA’s Hazard Communication Standards.
Comply with OSHA’s standards on bloodborne pathogens, including proper disposal of regulated waste and PPE.
Still Have Questions? We’re here to help. We can help you with specific local, state, and federal guidelines to both ensure your compliance with law as your reopen your workplace and that your employers and customers alike are safe. Please send us an email at christina@saunders-saunders.com or give us a call today at 303-396-0270.
