As states and cities ease restrictions surrounding the novel Coronavirus Disease 2019 (COVID-19) and employees return to work, it is more important than ever before that employers are aware of the best practices to keep all employees, and our communities, safe and healthy.
How Can Employers Best Protect Their Workers From COVID-19?
Like all diseases, prevention is the best way to combat COVID-19. Consequently, the Occupational Safety and Health Administration (OSHA) has compiled a Guide to Preparing Workplaces for COVID-19, available here. This guide is extensive, and addresses the many unique situations employers will face when allowing employees to return to the workplace. While the guide is advisory in nature, it will assist employers in complying with their general duty to provide employees with “a workplace free from recognized hazards likely to cause death or serious physical harm.” As such, OSHA has provided recommendations that are applicable to all employers, along with specific guidance to best protect medium, and high-risk employees.
In general, OSHA recommends that all employers:
- Develop an infectious disease preparedness and response plan that identifies potential sources of exposure, non-occupational risk factors at home and in community settings, and risk factors of individual workers. The plan should also implement controls that will remedy these risks.
- Implement basic infection prevention measures, such as frequent hand washing, encouraging sick works to stay home, maintaining flexible telecommute policies if possible, and practicing regular housekeeping practices like cleaning and disinfecting of surfaces.
- Develop policies and procedures for prompt identification and isolation of sick people, such as encouraging employees to self-monitor and report symptoms.
- Implement workplace controls, including engineering controls, administrative controls, safe work practices, and PPE. Engineering controls might include physical barriers, while administrative controls and safe work practices might include establishing alternating days of work and requiring regular handwashing.
Employers should refer to OSHA’s guide for specific information regarding disease prevention for high and medium risk employees.
What Must Employers Do If An Employee Contracts COVID-19?
As businesses reopen, employers must continue to comply with the requirements of the Families First Coronavirus Act (FFCRA) and other federal laws. Specifically, under FFCRA, employees who are unable to work due to being quarantined and/or experiencing COVID-19 symptoms are entitled to up to 80 hours (pro-rated for part-time employees) of paid sick leave at their regular rate of pay. If employees are unable to work due to a need to care for an individual subject to quarantine or to care for a child whose school or child care provider is closed, they are entitled to up to 80 hours (pro-rated for part-time work) of paid sick leave at two-third their regular rate of pay.
How Can Employers Be Sure To Comply With Other Employment Laws?
Coronavirus has not abrogated the protections of employment laws like the Americans with Disabilities Act (ADA), the Fair Labor Standards Act (FLSA), or Title VII. The EEOC has promulgated specific guidance on ADA compliance in the workplace during a pandemic, available here. Among other things, employers are permitted to inquire as to whether an employee is experiencing symptoms of COVID-19, require symptomatic employees to remain at home, and even take employees’ temperatures. Employers may not ask for specific information regarding medical conditions that may make employees more vulnerable to COVID-19. However, if an employee voluntarily discloses that they have a medical condition that puts them at increased risk of complications from COVID-19, employers have an obligation to engage in the interactive process to find a reasonable accommodation for that employee, such as continuing to telework when other employees return to the office.
FLSA complications may arise when bringing furloughed employees back to work. When salaried employees are furloughed, they generally must receive their full salary in any week in which they perform any work whatsoever. Therefore, even if salaried employees are only in the office and working for a few days a week, they must be paid their entire salary. Employers must also continue to compensate hourly employees for the hours actually worked, whether at home or in the office.
Finally, as COVID-19 has led to increased harassment based on national origin, particularly individuals of Asian descent, employers must be sure to provide a workplace that is free from harassment due to national origin, race, or any other protected characteristic. To ensure that all employees are able to work in a safe and professional environment, employers should remind all employees of federal laws prohibiting harassment, and should promptly investigate any allegations of harassment or discrimination, taking action when appropriate.