June 25, 2020
By: Andrés J. Gallegos
Employers are obligated to provide employees with a workplace free from recognized hazards likely to cause death or physical harm. Doing so amid the pandemic goes beyond simply providing masks, gloves and other personal protective equipment. The provision of personal protective equipment is critically important, but it is only one component of an employer’s comprehensive plan to ensure it reopens its workplace safely. Adoption and implementation of workplace controls in response to the COVID-19 virus that address the workplace environment and safe work practices must also be included.
Workplace environment controls should include an infection prevention strategy that involves isolating employees from work-related hazards without relying on employee behavior. In an office environment, those controls may include creating greater distance between employees’ desks and workstations. If that is not feasible, installing physical barriers such as clear plastic “sneeze guards” between desks or workstations may be required.
Workplace administrative controls are policies and procedures that promote safe work practices requiring action by the employees. Such controls include adopting policies and practices encouraging employees to stay at home if sick; replacing face-to-face meetings with virtual communications and implementing, if feasible, telework; and establishing alternating work days or creating shifts to reduce the total number of employees in an office at any given time.
Safe work practices require employers to provide their workers with personal protective equipment needed to keep them safe while performing their jobs. The types of personal protective equipment required during this COVID-19 outbreak should be based on the risk of being infected with the virus while working and the job tasks that may lead to exposure. Providing personal protective equipment should be accompanied by guidance on how and when to use it, how to put it on, take it off correctly, etc., all in the context of employees’ duties. Safe work practices also include the provision of resources that promote personal hygiene like providing tissues, no-touch trash cans, hand soap, alcohol-based hand rubs, disinfectants, and disposable towels for employees to clean their work surfaces.
In adopting and implementing administrative controls, employers must be mindful of their confidentiality obligations under the healthcare privacy law, HIPAA, and their nondiscrimination obligations under the Americans with Disabilities Act (ADA). Although the ADA generally restricts employer-mandated medical examinations unless voluntary or job related, employers can take employees’ temperatures. EEOC guidance permits taking temperatures during the pandemic due to the “direct threat” posed by the virus. Under the direct threat exception, employers can also mandate that employees be tested for the presence of the virus. However, employers are obligated to ensure that those tests are accurate and reliable. Moreover, the results of those tests must be kept confidential. If an employee contracts COVID-19, other employees can be told if they have been exposed, but the confidentiality rules will generally limit disclosing which specific employee contracted COVID-19.