Employment Alert: "What Measures Should Employers Implement to Ensure a Safe Working Environment in Response to COVID-19?"

Publication

03.25.2020

Employers across the country are navigating concerns regarding the effects of COVID-19 in the workplace, including questions related to paid leave requirements (see New Paid Leave Policy Offers Broad Federally Mandated Leave for COVID-19 Relief), restrictions arising from mandated business closures (see Practical Tips on the Harris County and Houston-area ‘Stay Home, Work Safe’ Order, and the health and safety of their employees. 

This alert will address the latter question – what measures should employers implement to ensure that they have provided their employees a safe work environment?  This question is highly relevant to the General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health Act of 1970 (“OSH Act”), which requires employers to furnish each worker “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.” 

Although there is no specific OSHA standard covering COVID-19, it is prudent for employers to review the guidance set forth by the Centers for Disease Control (“CDC”), the Equal Employment Opportunity Commission (“EEOC”), and the Occupational Safety and Health Administration (“OSHA”) (see here)  to make sure that they have implemented proper health and safety measures to protect employees against COVID-19. 

Key recommendations from each of the foregoing agencies are summarized below:

1. Actively encourage sick employees to stay home.

• Employees who have symptoms of acute respiratory illness should stay home until they are fever free without fever-reducing medicines. 
• Employers may take the body temperature of employees.  Although measuring an employee’s body temperature is a medical examination, which is generally prohibited under the Americans with Disabilities Act (the “ADA”), due to CDC and state/local health authorities’ concerns of community spread of COVID-19, such temperature monitoring is currently permissible for COVID-19 prevention.
• Ensure sick leave policies are flexible and that employees are aware of these policies.
• Do not require a healthcare provider’s note for employees who are sick with acute respiratory illness to validate their illness or to return for work because healthcare offices and medical facilities may be extremely busy.
• Maintain flexible policies that permit employees to stay home to care for a sick family member.
• Be aware that employees with disabilities that put them at high risk for COVID-19 complications may request telework as a reasonable accommodation under the ADA.

2. Implement social distancing.

• Explore whether flexible worksites (telecommuting) and flexible work hours (staggered shifts) can be implemented to increase the physical distance among employees.  You may also consider establishing alternating days or extra shifts that reduce the total number of employees in a facility at a given time, allowing them to maintain distance from one another while maintaining a full onsite work week.
• To the extent possible, individuals should maintain a 6-foot distance from one another.
• Discourage sharing phones, desks, offices, and equipment.
• Minimize contact among workers, clients, and customers by replacing face-to-face meetings with virtual communications.

3. Separate sick employees.

• Employees who appear to have acute respiratory illness symptoms (cough, shortness of breath) upon arrival to work or become sick during the day should be separated from other employees and sent home immediately.

4. Emphasize respiratory etiquette and hand hygiene.

• Place posters at the entrance of the workplace and in common areas that encourage staying home when sick, cough/sneeze etiquette, and hand hygiene.

5. Provide cleaning products and perform routine environmental cleaning.

• Provide tissues and no-touch disposal receptacles.
• Instruct employees to clean their hands often with alcohol-based sanitizer or soap and water for at least 20 seconds.
• Provide soap and water and alcohol-based sanitizer.
• Routinely clean all frequently touched surfaces.
• Provide disposable wipes so that commonly used surfaces can be wiped down.

6. Encourage self-reporting.

• Inform and encourage employees to self-monitor for symptoms.
• Provide workers with up-to-date education and training on COVID-19 risk factors and protective behaviors (e.g., cough etiquette).
• Develop a policy for employees to report when they are sick or experiencing symptoms of COVID-19.
• If an employee has a family member who has been diagnosed with COVID-19, the employee should notify their supervisor.
• If an employee is confirmed to have COVID-19, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality as required by the ADA.

During this time it is also prudent for employers to remember that even if an employee does not have a medical reason for self-quarantining, but has a reasonable belief that reporting to work would pose an imminent and serious danger to the employee’s life or health, the employee cannot be retaliated against for voicing their concern.  29 C.F.R. § 1977.9(c) (good faith complaints to employer about occupational health and safety are protected activity under the OSH Act).  By implementing the foregoing preventative strategies, employers can actively mitigate against workplace health and safety concerns.

Porter Hedges is monitoring the evolution of COVID-19 law, and will continue to publish additional updates as developments unfold.