Godfrey & Kahn Updates
FAQ: Employee safety during coronavirusMarch 16, 2020
[Some guidance in this post has been updated. See EEOC issues guidance on taking employee temperatures for more information.]
The 2019 novel coronavirus (COVID-19) pandemic has workplace safety at the forefront of employers’ minds. The following are answers to questions Godfrey & Kahn’s Labor, Employment & Immigration attorneys are receiving on employee safety.
When implementing this guidance, remember that first and foremost, it is critical to train supervisors and managers not to panic should an employee appear with symptoms.
Is there workplace safety guidance we should follow related to COVID-19?
Yes, the Occupational Safety and Health Administration (OSHA) recently published guidance related specifically to COVID-19. The guidance outlines steps employers can take to help protect their workforce based on a 4 tier level of risk exposure. The risk zones are helpful in determining appropriate work practices and precautions.
Can you ask an employee to stay home or leave work if they exhibit COVID-19 symptoms or the flu?
Yes, employers are permitted to require employees to seek medical attention and get tested for COVID-19 under these circumstances. The U.S. Centers for Disease Control and Prevention (CDC) states that employees who exhibit symptoms of influenza-like illness at work during a pandemic should be required to leave the workplace. The Equal Employment Opportunity Commission (EEOC) guidance distributed during the H1N1 pandemic says that advising workers to go home is not disability-related if the symptoms are akin to the seasonal influenza or virus and the EEOC is directing employers to this same guidance with the COVID-19 pandemic.
Can you ask an employee specific questions related to their health to determine if the employee is suffering from a typical illness and not COVID-19?
It depends. There is no easy way for employers to make this determination, but following the basic logic laid out by the EEOC helps. Always remember to be thoughtful and cautious when inquiring about an employee’s illness. The indicators that will lead you to conclude an illness could be COVID-19, include the employee’s travel to a red zone or an area otherwise subject to federal travel restrictions or exposure to someone who traveled to one of these areas.
The EEOC’s pandemic guidance acknowledges that if the virus’ spread becomes severe, inquiries into an employee’s symptoms, even if disability-related, are considered justified as a reasonable belief. This reasonable belief is based on objective evidence that the severe form of pandemic influenza poses a direct threat. Remember, employers must maintain all information about an employee’s illness as a confidential medical record in compliance with the Americans with Disabilities Act (ADA).
If an employee self-reports a positive COVID-19 test or is suspected, but not yet confirmed to have COVID-19, what can employers tell coworkers?
As with any other medical-related employee information, maintaining the confidentiality of the employee’s health information is critical. This includes keeping the identity of the employee confidential. The CDC guidance[ME1] for employers, however, outlines inquiries that should be undertaken with employees. Once an employee is suspected, or confirmed, to have COVID-19, employers should ask the employee who they came into close proximity contact with while at work in the previous 14-day period. Close proximity contact is considered three to six feet. The coworkers identified should be advised that they may have been exposed to COVID-19 and advised to self-monitor for symptoms.
Can an employee refuse to come to work based on a fear of infection?
Under the OSHA regulations, employees are only entitled to refuse work if they believe they are in “imminent danger.” Section 13(a) of OSHA defines “imminent danger” to include “any conditions or practices in any place of employment which are such that a danger exists which can reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act.” The threat must be immediate or imminent, which means that an employee must believe that death or serious physical harm could occur within a short time. For example, continuing to require business travel to China may rise to this threshold, but most work conditions in the U.S. do not. That being said, these are unique times and you should continue to examine all facts and circumstances on a case-by-case basis when answering this question.
If an employee notifies you that they tested positive for COVID-19, are you, as the employer, required to report it to the CDC?
No. Healthcare providers who have patients that test positive for COVID-19 are required report the test results to the CDC.