Following the publication of our January 31, 2020 Client Alert, “Coronavirus: Steps Employers Should be Taking,” the Centers for Disease Control (“CDC”) and the Occupational Safety and Health Administration (“OSHA”) have issued new guidance for employers about how to respond to the recently discovered coronavirus, COVID-19.
In addition, the mayor of San Francisco has declared a local emergency, announced here. It also appears that California has a confirmed case of community transmission (someone who caught the virus locally from an unknown infected person). Although the number of confirmed cases in the U.S. remains small, the situation is fluid and employers should stay abreast of developments and guidelines as they are issued. The latest recommendations follow.
CDC Update
The CDC notes that for “the general American public, such as workers in non-healthcare settings and where it is unlikely that work tasks create an increased risk of exposures to COVID-19, the immediate health risk from COVID-19 is considered low.” Nevertheless, the CDC advises that employers take the following steps to reduce the risk of exposure:
- Encourage sick employees to stay home.
- In particular, those with respiratory illness are recommended to stay home until they are fever free for at least 24 hours.
- To encourage employees to stay home when needed, employers should maintain flexible policies that permit employees to stay home when sick.
- Symptom-free people with low-risk exposures are advised to self-observe until 14 days after their last potential exposure.
- Employers may recommend that employees with low-risk exposures check their temperature before arriving at the workplace.
- Separate sick employees when possible, and encourage employees to practice good hand hygiene and coughing and sneezing etiquette.
- Posters, in particular, can be a helpful tool for informing employees about hygiene etiquette.
- Educational materials developed by the CDC, including fact sheets, posters, checklists, planning guides, videos, and podcasts, can be found online here.
- In addition, employers should provide disposable wipes so that employees may wipe down regularly used surfaces.
- Perform routine environmental cleaning, although no additional disinfection beyond routine cleaning is recommended at this time.
- Be mindful of employee travel, and advise employees to check the CDC’s online health notices, check themselves for symptoms, and notify their supervisors if they travel to high-risk areas or become sick during travel.
- Traveling employees should contact their healthcare providers if they need healthcare services while abroad and may contact consular offices for additional assistance finding healthcare resources abroad.
- Inform employees that if they live with individuals who have contracted COVID-19, they should inform their supervisors and refer to CDC guidance on how to conduct risk assessments, available here.
- Inform employees of possible exposure if those with whom they work have confirmed cases of COVID-19, and conduct risk assessments as needed, but maintain employee confidentiality as required by the Americans with Disabilities Act.
Perhaps most importantly, the CDC specifically advises that employers “do not make determinations of risk based on race or country of origin, and be sure to maintain confidentiality of people with confirmed coronavirus infection.”
The CDC further recommends that employers develop an Outbreak Response Plan. In doing so, employers should be mindful of the objectives of such plans, which typically include:
- Reducing transmission;
- Protecting high-risk individuals;
- Maintaining operations; and
- Minimizing adverse effects on other businesses and consumers.
When developing Outbreak Response Plans, the CDC recommends:
- Involving employees in the development and review of the plan;
- Communicating with employees about policies and benefits that can be used to implement the plan;
- Conducting focused analyses and exercises using the plan to identify potential gaps; and
- Sharing best practices with other businesses.
Effective Outbreak Response Plans should:
- Analyze exposure and health risks to employees;
- Identify critical functions, roles, and supply chain elements, and prepare for the effects of increased absenteeism;
- Incorporate human resource policies that are consistent with public health recommendations and with state and federal workplace laws;
- Establish processes for communicating to employees and business partners about the Outbreak Response Plan;
- Refer to plans developed by the communities in which the business operates;
- Make note of channels of communication with state and local health departments and methods for disseminating local outbreak information;
- Minimize exposure among employees and between employees and the public when called for by public officials;
- Offer, where feasible and recommended by local health authorities, flexibility in work locations and work hours by, for example, permitting telecommuting or staggering shifts;
- Limit or cancel non-essential travel to or from communities where outbreaks have been detected; and
- Lay out procedures for activating and terminating the Outbreak Response Plan.
OSHA Guidance
In addition to CDC guidance, employers should be mindful of guidance from OSHA. OSHA’s general COVID-19 guidance can be found online here. While OSHA has yet to develop standards specific to COVID-19, OSHA’s website identifies several existing standards that may be applicable, available online here. Potentially applicable standards include those for:
- Recording and Reporting Occupational Injuries and Illness;
- Personal Protective Equipment, specifically standards regarding:
- General requirements;
- Eye and face protection;
- Respiratory protection; and
- Hand protection;
- General Environmental Controls, specifically standards regarding sanitation; and
- Toxic and Hazardous Substances, specifically standards regarding:
- Access to employee exposure and medical records;
- Bloodborne pathogens;
- Hazard communication; and
- Occupational exposure to hazardous chemicals in laboratories.
Notably, OSHA has stated that, unlike the common cold or the flu, COVID-19 is a recordable illness that should be reported in accordance with OSHA’s Injury and Illness Recordkeeping and Reporting Requirements, available here.
Employers should also be mindful of potentially applicable state plans, which can be found through OSHA’s website here.
Key Takeaways
As with other communicable respiratory illnesses like the flu, employers should encourage sick employees to stay home to limit the risk of exposure to COVID-19. Businesses should also review their policies and develop Outbreak Response Plans that may be implemented in the event of an outbreak as advised by public officials. Nevertheless, any response should be based upon facts, proportionate to the actual risks, and should be mindful of the need to remain compliant with existing employment and labor laws and regulations.
Based on guidance from public health authorities, employers may want to consider temporary changes to their operating protocols, such as:
- Prohibiting business travel to or from high-risk areas;
- Limiting non-essential travel;
- Postponing large gatherings;
- Reducing non-essential contact with business partners and clients;
- Educating employees about risks and precautions as recommended by public officials;
- Providing employees with tools to improve hygiene, such as hand sanitizers, disinfectant wipes, and tissues;
- Recommending or requiring that employees with elevated risks of exposure to COVID‑19 work remotely for 14 days without symptoms before being permitted to return to the worksite;
- Permitting other sick and high-risk individuals, such as those with other medical conditions, to work remotely, take time off, or work flexible hours as reasonably necessary.
All businesses should be mindful of the public health risks associated with COVID‑19. Measured responses can protect employees and employers alike without running afoul of the law. Still, employers must remember that the discovery of the coronavirus does not relieve them of their existing obligations to their employees under the law. Listen to public officials and always be careful not to contravene laws protecting employees, such as prohibitions against discrimination, confidentiality protections, health and safety regulations, and employee leave laws, just to name a few.
For more information about how employers should respond to the emergence of COVID-19, please refer to our prior client alert on this topic, available here. If you need more specific guidance, feel free to contact one of the members of our Employment and Labor Group.