Employer Guidelines in Response to COVID-19:
In light of the COVID-19 pandemic, employers are implementing new policies to promote health and safety in the workplace. However, some public health considerations may conflict with discrimination and privacy regulations set in place by the Americans with Disabilities Act (ADA) and the Health Insurance Portability and Accountability Act (HIPAA). The FAQ below is intended to aid employers in navigating the ever-changing requirements.
What to Plan For:
What precautionary measures should employers be taking?
OSHA is not requiring employers to take more than reasonable steps to help prevent the spread of COVID-19. Employers do not have to require employees to wear gloves or masks during working hours. Employers are encouraged to have hand sanitizer and tissues available and to inform their employees of health care professionals’ recommendations including to:
Employers should ensure that frequently used objects and surfaces are regularly cleaned and disinfected. Those in office buildings should confer with the building management to ensure proper sanitary measures are being taken to regularly clean often-used common areas.
What action may an employer take if they suspect an employee is infected?
The employer may ask the employee if they are experiencing any of the COVID-19 symptoms. High-risk employees, such as those who have recently traveled, may be screened to determine their likelihood of exposure. Pursuant to CDC guidelines, employers have the right to separate or send home employees who are experiencing COVID-19 symptoms. Employers should encourage all employees to be tested.
What action may an employer take if an employee tested positive for COVID-19?
If an employee has a confirmed case of COVID-19, the employer may, and should, require the employee to stay home. Any accommodations for working from home or taking a leave of absence should be discussed. Other employees should be notified that a member of the workforce has tested positive while keeping the infected employee’s identity anonymous. The employer may require medical clearance for the employee to return to work.
What information may an employer request from their employees?
An employer may ask if an employee is experiencing symptoms of the virus such as fever, chills, cough, sore throat, or shortness of breath. Under the ADA, an employer may NOT make disability-related inquiries to determine if a disabled employee has a compromised immune system. Non-disability related questions regarding high risk factors such as pregnancy, those with respiratory issues, and those age 65 or older are permitted. An employer may still inquire as to the reasoning for any employee calling off of work. All information received from employees must be kept confidential.
Can an employer restrict employees from traveling?
Employers may limit or cease business travel but cannot prohibit personal, non-business travel. However, they may still encourage employees to check the CDC’s Traveler’s Health Notice. If an employee has traveled to an area with an outbreak, the employer may ask if they are experiencing COVID-19 symptoms. Employees may not be required to stay home if they do not exhibit symptoms
Can an employer require employees to seek medical treatment if they do not have symptoms?
No, an employer cannot require an employee to receive a flu shot or other outside medical testing if the employee exhibits no symptoms or is not high-risk.
Can employers implement their own on-site testing?
Yes, per the CDC’s recommendations, employers may set up on-site testing to take temperatures and perform respiratory screenings on employees entering the workspace. Although taking temperatures is typically considered a medical examination that would be prohibited by the ADA, the CDC has acknowledged the importance of preventing the spread of COVID-19 and has given employers permission.
What protocol should employers use for on-site testing?
All testing should be performed while the employee is on the clock. Employers should implement procedures that avoid large gatherings while employees are waiting to be tested. For large, plant-like environments, employers may implement drive-through testing. Employers in an office building setting should consider a testing/vetting process that allows an employee to remotely clock in but not access the facility until the employee has been cleared for entry. During this time period, employers should also consider asking appropriate questions to determine a given employee’s risk/exposure likelihood. For example, employers should (during this entry/clock-in period) ask employees if they have travelled internationally and whether they or anyone they have been in contact has either tested positive or exhibited the symptoms of the COVID-19 virus. Testing procedures should maintain confidentiality by ensuring that employees will not be able to discern one another’s test results.
Can employers select certain employees for testing?
Employers may prioritize those at higher risk for testing. However, they must be consistent in their selection and document their reason for the decision. Employers CANNOT discriminate and select employees for testing based solely on national origin, race, ancestry, or citizenship status.
What records should employers maintain from testing?
An employer should treat on-site testing records as confidential medical records and retain them according to the applicable regulatory requirements. While it may constitute more paperwork, documents should be maintained as they could be necessary in any future discriminatory action regarding testing procedure.
Is an employer required to report confirmed or suspected cases of COVID?
Under the current law, there is no obligation to report cases to public health officials if an employee has tested positive. However, employers are strongly encouraged to do so. Public health agencies have hotlines available for reporting, so employers should have that information ready to use.
The Office of Civil Rights (OCR) issued a notice on April 2, 2020 giving employers the right to disclose certain Protected Health Information (PHI) to law enforcement and public health authorities that would typically be confidential under HIPAA. Any disclosure made pursuant to the notice must be a good faith use of PHI and the business associate using the information must notify the protected entity of the disclosure within 10 days. The notice may be viewed here.
When can an employer send an employee home?
If an employee has registered a fever of 100.4 degrees or above, that employee should self-isolate according to CDC. The ADA does not prevent an employer from requiring their employees to stay home if they are ill. Employees SHOULD stay at home if they are ill.
When can an employee return to work?
If an employee registered a fever of at or above 100.4 degrees, they may be required to self-isolate for 14 days. The ADA allows employers to also require medical clearance or proof of a negative COVID-19 test before allowing the employee to return to work. If the employer elects to do so, they may also rely on an employee self-reporting that they are no longer experiencing any virus symptoms.
Are employers required to pay employees who are sent home?
The Families First Coronavirus Response Act (FFCRA), signed on March 18, 2020, requires certain employers to provide employees with paid sick leave and extended family and medical leave for COVID-19 related issues. The FFCRA applies to public and private employers with less than 500 employees; those with less than 50 employees may qualify for an exemption. A summary of the FFCRA may be viewed here.
Employers should also consider whether any absence may be covered by the Family and Medical Leave Act (FMLA). Typically, where a request for FMLA leave is foreseeable, employees must give notice of their intention to take leave at least 30 days in advance. However, the FFCRA provides for specific expanded categories of FMLA leave related to COVID-19. Unlike traditional FMLA leave, employees are only required to give notice of the expanded COVID-19 related leave “as is practicable.”
How should unionized employees be addressed?
Employers should consider any collective bargaining agreement which covers their unionized employees while implementing new policies in response to COVID-19. Policies should be discussed with the union representative to ensure compliance.
Where can employers find more resources?
With an abundance of information available, not all of which may be reliable, it is important for employers to rely on professional medical advice. A number of government agencies have also released guidelines which may aid employers in making decisions during this difficult time. Some of these guidelines are listed below:
This Guidance does not, and is not intended to, constitute legal or medical advice and should not be relied upon as legal or medical advice. All readers should contact an attorney or medical professional before acting, or refraining from acting, on the basis of this information.