EEOC and OSHA Guidance Regarding COVID-19
Laws and regulations are changing rapidly. After the publication of this article they are subject to change. Check back regularly for updates.
The Equal Employment Opportunity Commission (“EEOC”) and Occupational Safety and Health Administration (“OSHA”) both released updated guidance regarding COVID-19 and its effects on workplace practices. The EEOC has released guidance addressing how COVID-19 effects the Americans with Disabilities Act, the Rehabilitation Act, and other equal employment laws. OSHA’s guidance addresses an increase in discretion provided to employers regarding its efforts to protect employees, the recording of COVID-19 as a work-related illness, and the shortage of personal protective equipment across the country.
The EEOC’s guidance first affirms that all of the laws it enforces are still in full effect during COVID-19. However, the guidance explains that these laws should not interfere or prevent employers from following health guidelines issued by the CDC or other public health authorities. The EEOC also warned employers that CDC and public health guidance will continue to change as the pandemic evolves, and so employers should follow the most current information on maintaining workplace safety.
Disability-Related Inquiries and Medical Exams
Employers can ask employees if they are experiencing symptoms of COVID-19, including symptoms such as a fever, chills, cough, shortness of breath, or a sore throat. Employers should note that any information gathered based on these questions would constitute a confidential medical record and should be maintained separately, as required by the ADA. Employers should reference the most recent CDC and public health authorities regarding the symptoms of COVID-19 and should not ask about symptoms outside of those related to COVID-19. If an employee has symptoms of COVID-19, employers can require the employee to stay home.
One method many employers are applying to check for symptoms of COVID-19 is taking the temperature of their employees. The EEOC confirms that measuring an employee’s body temperature is a medical examination; however, the EEOC confirms that it is acceptable for employers to take the body temperatures of their employees. There are several issues employers should consider before deciding to take the body temperature of their employees. First, employers should have a medical professional taking body temperatures to make sure that the temperatures are taken properly, and all safety precautions are being followed. Also, employers should remember that the temperature information gathered on each employee will be confidential medical information that needs to be properly maintained under the ADA. Employers should also consider the true reason for taking body temperatures of their employees because current CDC and public health guidance recognize that individuals can transmit COVID-19 to other people even if they do not show any symptoms. This support for the position that taking the body temperature of all employees before entering the facility creates more issues for employers without providing protection from spreading the disease.
The EEOC also confirmed that employers can require a fitness for duty certificate from a doctor before allowing an employee to return to work after a COVID-19 illness. The EEOC did warn that practically employers should consider alternatives to a full fitness for duty test because of the lack of access to certain health facilities and doctors.
Confidentiality of Information
The EEOC recognized that all medical information gathered by employers about their employees regarding COVID-19, including information about symptoms and body temperatures, is confidential medical information. Therefore, this information should be stored separately from the employee’s normal personnel file to limit access to the information. The EEOC stated that an employer can tell a public health agency if it learns an employee has COVID-19. A temporary staffing agency can also tell an employer the name of any temporary worker who was placed at the employer’s facility and contracted COVID-19. This is because the employer will need to find out what contact the temporary worker had within its facility.
Hiring and Onboarding
Employers can screen job applicants for symptoms of COVID-19 after making a conditional offer of employment, as long as it does so for all applicants for that position. Employers can also delay the start date if an applicant has COVID-19 or withdraw the job offer if the employer needs the applicant to start immediately. Employers cannot postpone the start date or withdraw a job offer for an applicant 65 years old or older or a pregnant woman, even if CDC guidance recognizes these factors increase the risk from COVID-19. Employers can discuss the possibility of postponing or teleworking with these individuals based on these factors.
The EEOC generally recognized that reasonable accommodations do exist for employees with disabilities that put them at a greater risk from COVID-19, and employers should participate in the normal interactive process for determining the best method of accommodating the disability that increases the risk of COVID-19. The disabilities affected by COVID-19 include mental illnesses and disorders, as well as physical disabilities, and so employers should be cognizant of possible accommodation requests based on the increased stress and anxiety caused by COVID-19. Employees are also entitled to request a new or alternative accommodation based on COVID-19 if they were already receiving an accommodation.
Employers can deny an accommodation request if an undue hardship exists. An undue hardship means that there is a significant expense to the employer because of the accommodation. The EEOC has stated that because of the economic effects of COVID-19, certain accommodations that were not undue hardships prior to COVID-19, might now be an undue hardship because of the financial position of the business or because of the decreased productivity caused by the accommodation.
The employers also still have the right to request information from their employees regarding why the accommodation is needed and medical documentation supporting the disability. As the information and status of the business changes, the accommodations may need to change as well, which can cause employers to shorten the interactive process and provide the needed accommodation quickly to allow for more productivity during the COVID-19 pandemic.
Employers can reduce the probability of increased discriminatory harassment because of the pandemic by maintaining communication with their employees and informing their employees of the laws that prohibit harassment or discrimination based on a protected characteristic.
Return to Work
As employees return to work because the government restrictions are lifted, employers can make disability related inquiries and conduct medical exams. If an employee has a medical condition that would pose a direct threat to the health or safety of the employees, then the employer can exclude such employees. Proof a medical condition is a direct threat must be determined based on objective medical evidence, which can include CDC guidance or public health authority statements.
An employer can require its employees to wear protective gear upon returning to the workplace, however, employers should be prepared for reasonable accommodations based on disabilities, such as breathing conditions, allergies to certain materials, or gowns designed for individuals with wheelchairs. Religious accommodations can also be raised by employees based on the protective gear
OSHA has produced guidance in response to COVID-19, addressing the enforcement issues present because of COVID-19, and the protections necessary for employees during this time. One primary goal of the OSHA guidance is to provide additional flexibility and discretion to its field offices, because of the inconsistent effect of COVID-19 across the country.
General Enforcement Guidance
Generally, OSHA will still investigate any complaints, referrals, and employer-reported fatalities and hospitalizations based on COVID-19. Unsurprisingly, the vast majority of complaints involve employee complaints of a lack of personal protective equipment at the workplace. In most cases, complaints such as these raised from non-healthcare and non-emergency response establishments should be processed following non-formal complaint procedures.
Any workplace related fatality or hospitalization should still be reported to OSHA within 8 hours for a fatality and 24 hours for hospitalization. The key consideration for employers here is whether COVID-19 is a work-related injury. For most employers, their employees are not in the workplace at all, and so contracting COVID-19 is not likely a workplace related injury. Therefore, employers in most instances will not be required to report an employee contracting COVID-19, unless there is evidence supporting that the employee contracted the disease during the course and scope of employment.
Workplace Risk Categories
Regarding prioritizing inspections, OSHA has categorized businesses in three categories, high exposure risk, medium exposure risk, and low exposure risk.
High exposure risk jobs are those with a high potential for exposure to COVID-19, mostly through medical, postmortem, or laboratory procedures. Jobs in this category include hospitals, medical facilities, nursing homes, settings that handle human remains, biomedical labs. OSHA specifically listed jobs that involve procedures addressing lung and mouth issues of individuals.
Medium exposure risk jobs are those that include frequent close contact with people who may be infected with COVID-19. These include jobs that have frequent contact with the general public, such as schools, high population density work environments, and high-volume retail settings. These also include workers who may have contact with travelers who return from international locations. An example under this category could possibly include groceries, as high-volume retail settings that involve close contact with people who may be infected.
Low exposure risk jobs are those that do not require contact with people suspected of being infected with COVID-19 or close contact with the general public.
OSHA developed these categories to assist in enforcement of OSHA regulations, requesting more consistent investigations of high exposure risk jobs during the COVID-19 pandemic to ensure businesses are limiting the spread as much as possible.
Recording Work-related Illnesses
Generally, employers are required to report any work-related illnesses to OSHA. For workers in the health care industry, emergency response organizations, and correctional institutions, OSHA guidance states it will continue enforcing these rules as normal. However, for other businesses, OSHA has confirmed that it will not require employers to make work-relatedness determinations except where (1) there is objective evidence that a COVID-19 case may be work-related and (2) the evidence was reasonably available to the employer. An example of objective evidence is when a cluster of employees who work closely develop COVID-19 without an alternative explanation.
Discretion Regarding Recurring Audits
OSHA has also released guidance increasing the discretion to OSHA officials regarding employers auditing, testing, inspecting, and training their employees, in an effort to decrease enforcement because of the COVID-19 pandemic. In industries where these are normally required to occur on an annual or recurring basis, OSHA will look to the good faith efforts of the employer to comply with the applicable OSHA standards regarding the recurring audits. This includes seeking alternative methods of complying, such as virtual training or remote communication strategies, and ensuring employees are not exposed to hazards from processes or equipment that have not been properly tested or prepared. Employers should show good faith efforts to complete the necessary testing, training, and auditing as soon as possible once the applicable restrictions are lifted.
Personal Protective Equipment
As many employers are already aware, personal protective equipment (“PPE”) is a crucial aspect of COVID-19, and certain employers are required under OSHA for certain industries. Recent OSHA guidance has addressed the shortage of PPE and loosened rules for health care providers regarding reusing PPE and fit testing procedures. OSHA states that employers should make a good faith effort to comply with its rules regarding PPE and train their employers on determining the structural and functional integrity of their PPE. OSHA has also loosened the rules regarding reusing PPE because of the shortage. Employers should also train employees regarding user seal checks to ensure there is an adequate seal for the respirator masks that are part of the PPE required by OSHA. OSHA also stated that employers should be willing to consider alternative models provided by their PPE manufacturer based on the shortage of certain PPE, and OSHA would provide greater discretion regarding these decisions made by employers, decreasing the likelihood of citations provided a good faith effort was made by the employer to protect its employees. Employers should also prioritize fit-testing kits and tools for those employees working in high-hazard environments.
The EEOC and OSHA have provided guidance addressing multiple concerns employers continue to face during the COVID-19 pandemic. Generally, the guidance reflects an increase in flexibility provided by the agencies to allow employers to continue their business to the best of their ability, provided the employers maintain good faith efforts to keep their employees safe. It is crucial for employers to remain up to date on the guidance issued by these agencies, because many of these temporary decreases in enforcement will be lifted as the government shelter-in-place restrictions are lifted across the country, and employers need to be prepared for the normal enforcement procedures when that occurs.