As of March 11, 2020, the World Health Organization (“WHO”) officially declared the COVID-19 virus outbreak to be a global pandemic.  On an hourly basis, we are watching both government agencies and corporations respond by making drastic changes to their routine business operations and plans by cancelling events and otherwise restricting travel and large meetings.  Most companies are facing the dilemma of how to continue to do business while meeting their legal obligations to protect employees.  This article provides an overview of the ongoing obligations employers have to consider to protect their employees while trying to maintain their business operations through this pandemic.

Occupational Safety and Health Act and Americans with Disabilities Act

The overarching law protecting employees in the United States is the Occupational Safety and Health Act of 1970 (“OSHA”).  Under the Act, virtually all employers are required to generally protect workers by furnishing each employee “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.”  The Act includes specific requirements related to protecting employees from blood borne pathogens or other potentially infectious materials.  While OSHA has stated that the transmission of COVID-19 through respiratory secretions does not squarely fit within the standard related to these blood borne pathogens, it has indicated that the regulatory framework regarding these protections is useful guidance to employers in this current pandemic.

In addition to OSHA’s workplace safety requirements, the Americans with Disabilities Act (“ADA”) provides applicable requirements for the treatment of employees.  Specific to the current COVID-19 pandemic, the ADA includes requirements regulating the employer’s inquiries and medical examinations of employees; prohibiting employers from excluding individuals with disabilities from the workplace for health or safety reasons unless they pose a direct threat (i.e. a significant risk of substantial harm; and requiring reasonable accommodations for individuals with disabilities).

OSHA and EEOC Guidance

Both OSHA and the Equal Employment Opportunity Commission (“EEOC”) have published guidance that can assist employers in making critical operational decisions during this pandemic without violating the applicable laws protecting their employees.

In addition to promoting increased hygiene practices such as hand-washing, social distancing, and covering coughs and sneezes, OSHA’s recently published COVID-19 guidance instructs all employers to implement several practices in an effort to protect employees, including:

• Developing policies and procedures for prompt identification and isolation of sick people;
• Restricting the number of personnel entering isolated areas, and otherwise minimizing contact among workers, clients, and customers by placing face-to-face meetings with virtual communications and implementing telework if feasible;
• Actively encouraging sick people to stay home;
• Ensuring that sick leave policies are flexible and consistent with public health guidance and that employees are aware of these policies, including policies allowing employees to stay home to care for a sick family member;
• Not requiring a health care provider’s note for employees who are sick with acute respiratory illness to validate their illness or to return to work because health providers may otherwise be overwhelmed;
• Discontinuing non-essential travel to locations with ongoing COVID-19 outbreaks; and
• Developing emergency communications plans, including establishing forums for answering employee questions;

OSHA’s guidance also helps employers to determine the risk of exposure for particular types of employees and how best to protect them.  For example, those with very high risk exposure who would require the most sophisticated workplace protections (i.e. doctors, nurses, EMTs, etc.); healthcare or lab personnel collecting or handling specimens from known or suspected COVID-19 patients; and morgue workers.  While a much broader group of employees present a medium risk of exposure (i.e. employees whose job requires frequent and/or close contact (i.e. within six (6) feet) of people who may be infected with COVID-19 in areas with ongoing COVID-19 transmission; those who may have frequent contact with travelers who may return from locations with widespread COVID-19 transmission; and in areas where there is ongoing community transmission; workers who may have contact with the general public (i.e. schools, high-population-density work environments, and some high volume retail settings)).

In addition to the precautions summarized above for all employers, OSHA’s guidance for protecting employees with a medium risk of exposure specifically includes:

• Consider offering masks to all ill employees and customers to contain respiratory secretions until they leave the workplace;
• Where appropriate, limit customers’ and the public’s access to the worksite, or restrict access to only certain workplace areas; and
• Consider strategies to minimize face-to-face contact.

Beyond OSHA’s specific COVID-19 guidance, the EEOC’s instructions to employers on ensuring ADA compliance during an influenza epidemic also is instructive.  That guidance includes useful practical directions on the communication with employees:

• Clarifying that employers may send employees home if they display symptoms;
• Clarifying that employers may ask employees who report feeling ill specific questions related to whether they are experiencing flu-like symptoms;
• Clarifying that employers may measure employees’ body temperature if the pandemic becomes widespread in the community as assessed by state or local health authorities or the CDC;
• Clarifying that employers may require workers to exercise infection control practices;
• Confirming that even under a pandemic employers may not ask asymptomatic employees to disclose whether they have a medical condition that could make them especially vulnerable.

Conclusion

In summary, while many businesses likely feel in many ways overwhelmed and confused by what is happening throughout the world in an effort to control COVID-19, there is practical guidance available on how to continue business operations while also complying with applicable worker protection laws.  This ongoing compliance will be critically important to ensure that the economic challenges caused by this pandemic are not compounded by the expense of dealing with costly employee-related claims once it concludes.

Finally, this article contains a summary of some of the most practical guidance for employers to comply with OSHA and ADA requirements, it is not a comprehensive review of the law and the related guidance.  You can readily access the complete guidance here and here.

Robert A. Wells is a Principal at Miles & Stockbridge’s Health Care Practice.  He helps companies to effectively operate their businesses in compliance with applicable laws, regulations, and industry guidelines.

Suzzanne W. Decker is a Principal at Miles & Stockbridge and the Co-Chair of the firm’s Labor & Employment Group. She assists businesses in all aspects of employer-employee relations.

Any opinions expressed and any legal positions asserted in the article are those of the author(s) and do not necessarily reflect the opinions or positions of Miles & Stockbridge P.C. or its other lawyers. This article is for general information purposes and is not intended to be and should not be taken as legal advice on any particular matter. It is not intended to and does not create any attorney-client relationship. Because legal advice must vary with individual circumstances, do not act or refrain from acting on the basis of this article without consulting professional legal counsel. If you would like additional information on the subject matter of this article, please feel free to contact any of the lawyers listed above. If you communicate with us, whether through email or other means, your communication does not establish an attorney-client relationship with either Miles & Stockbridge P.C. or any of the firm's lawyers. At Miles & Stockbridge P.C., an attorney-client relationship can be formed only by personal contact with an individual lawyer, not by email, and requires our agreement to act as your legal counsel together with your execution of a written engagement agreement with Miles & Stockbridge P.C.