Dori Goldstein: There’s one thing that I think is really important for everyone to keep in mind, which is that all workplace laws such as Title VII, ADA, FLSA, FMLA, HIPAA, GINA, and other federal, state, and local workplace laws still apply.
An important one is Occupational Safety and Health Act’s general duty clause: “Each employer shall furnish to each of his employees 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 to his employees…” [29 U.S.C. § 654]
Ron Peppe: I’m on the front line of dealing with plants and workers and how we do it, and they’re challenging us with fact patterns that we just never thought of that involve all of these things. For example, I had a supervisor call the other day who said, “I’ve got a guy who was on vacation. He flew through the Seattle airport and therefore I don’t want him coming to work – and if he’s coming to work, I’m not coming to work.”
Now I have to think about every one of these things, how it can apply. It’s almost like reading a law school exam question by the time you add it all up. And if there’s one takeaway, I’d say you’ll have to address this in terms of your normal policies and then see if there’s any exception that applies.
Goldstein: If you have people in the office performing extra cleaning in compliance with the OSHA recommendations, providing hand sanitizer, educating employees on handwashing, allowing for social distancing, providing protective gear when appropriate, etc. – all of these things can help create a safe workplace, but are they enough? Are you getting this question from staff? Can employees refuse to come to work?
Peppe: In general, OSHA says people can refuse to do certain things if there’s really an imminent harm or danger. Now some people will say, “this is so bad,” that sense of harm exists and it’s a legitimate belief. Other folks will say “it’s not as widespread; it’s controlled.” But the bottom line is workers don’t get an automatic out just because they feel it’s unsafe to come to work. At the same time, you have to worry about the National Labor Relations Board because even if you meet the OSHA standard, if a bunch of employees start talking to each other about this, they have the right to talk about feeling unsafe and you can’t retaliate against that either.
OSHA did put out some guidelines for the virus that I find very helpful. They categorize the workplace into areas ranging from very high exposure to medium exposure to low exposure, and I think a lot of workers would be surprised to see that most places fall into lower exposure unless you’re public in a large crowd, in a health care environment, etc., so you can still manage the workplace to have that lower-exposure environment to meet the standard.
Can employers screen the temperatures of employees?
Goldstein: Under the Americans with Disabilities Act, temperature checks are considered medical examinations. Even if a direct threat exists, there is the confidentiality provision, so just be careful with that. Also going along with it is that many conditions can cause a fever, not just Covid-19. So you might reveal another disability in doing this and that can cause problems for you. If you are going to do some kind of screening, please consider the health and safety of the workers performing the screenings. Are they properly trained? Are they properly protected?
Peppe: It’s a very dangerous thing to ask someone on your workforce to come into contact with every other person on your workforce. Under the ADA, not just taking a temperature is an exam, but grilling somebody and asking too many questions about their medical condition could be considered an exam. And so the general rule is that you can ask people how they’re feeling, but if you start asking about specific conditions, you might be crossing that line even with this exemption for the pandemic that lets you do certain things.
Even under the old H1N1 guidelines, you can’t ask asymptomatic employees to disclose if they have medical conditions that make them vulnerable, but that’s what lots of companies are starting to do right now.
What happens if an employee is suspected or confirmed to have Covid-19?
Goldstein: A general guideline is to tell your employees to stay home and quarantine when showing any symptoms. Find out whom they’ve talked to and where they have been. Notify people, but assure the employee that their identity will remain confidential. Ron: Have you run into issues with employees demanding to know if other employees have tested positive?
Peppe: We have. And partly it is related to the travel issue, where they thought they had been somewhere and they wanted some certainty. It also came up when people might have allergies. We’re in the season right now. People are sneezing and coughing and having issues. And when somebody sneezes, it tends to set off a panic of employees marching to HR saying, “I want so-and-so tested for the virus and I will not work until I hear there is a negative result.” So you’ve got a number of issues there because they’re both making assumptions about the condition and they’re demanding to know the outcome.
I can’t emphasize enough: Have a written policy so that there is a checklist that your front-line managers can go by, because you don’t want to veer off the script in the attempt to try to do something good and end up with more problems. We tell folks if someone comes into work sick, we send them home and we say you need to stay home for a little while until we know you’re okay. Sometimes they may get tested, they may not.
If someone does test positive, we have the whole issue of we’re not going to tell people that person’s name. We might tell people there was a potential exposure in the workplace. But even then we’re going to look at whom that person actually had contact with, was it in their immediate work area, and so on. And this has been evolving. I’ve been looking at what companies are doing; it ranges from shutting down an entire plant to more reasonably shutting down production lines in the immediate area when something like this happens.