There is little doubt that the current coronavirus (COVID-19) pandemic has employers of all types and sizes and in most industries thinking more about workplace safety than they have in the past, especially the last few years. This is true whether an employer is in San Antonio, unincorporated Bexar County, the state of Texas or beyond. This post will attempt to answer questions many employers may have from the perspective of overall workplace safety and health. When assessing the answers to these questions, always keep in mind that it is always critical to make sure all supervisors, managers and workers are fully trained and are not prone to panic if they encounter symptoms or a worker tests positive for COVID-19.
Q: Is There Specific Workplace Safety Guidance Related to COVID-19?
The quick answer is yes. The Occupational Safety and Health Administration (OSHA) recently published their own guidance related specifically to COVID-19, which can be found here. The OSHA guidance outlines a number of steps employers and workplace safety specialists can take to help protect their workers. Their guidance is based on a 4 tier level of risk exposure. The risk zones are helpful in determining appropriate work practices and precautions.
Q: Can an Employer Ask an Employee to Either Stay Home or Leave Work if They Exhibit COVID-19 or Similar (Flu) Symptoms?
Yes, employers are permitted to require employees to seek medical attention and get tested for COVID-19 under these circumstances. The U.S. Centers for Disease Control and Prevention (CDC) is of the opinion that employees who exhibit symptoms of influenza-like illness at work during a pandemic should be required to leave the workplace. EEOC guidance distributed during the H1N1 pandemic says that advising workers to go home is not disability-related if the symptoms are akin to the seasonal influenza or virus and the EEOC is directing employers to follow this same guidance with the COVID-19 pandemic.
Can an Employer Ask an Employee Specific Health Questions to Determine if They May Be Suffering from COVID-19 or the Flu?
The answer to this one actually depends on the circumstances. It may not even be worth it to try, since it is not easy for the employer to make such a determination in any case. That said, following the basic logic laid out by the EEOC can be a big help. The employer should always be thoughtful and cautious when inquiring about an employee’s possible illness. The indicators that will lead you to conclude an illness could be COVID-19 include the employee’s travel to a known hotspot or an area subject to federal travel restrictions or exposure to someone who traveled to one of these areas.
The EEOC’s pandemic guidance acknowledges that if the virus’ spread becomes severe, inquiries into an employee’s symptoms, even if disability-related, are considered justified as a reasonable belief, as long as it is based on objective evidence that the illness poses a direct threat. Also, employers must maintain all information about an employee’s illness as a confidential medical record in compliance with the Americans with Disabilities Act (ADA).
If an Employee Self-Reports a Positive COVID-19 or They are Suspected but Not Yet Confirmed to Have COVID-19, What can Employers Tell Co-Workers?
As with any other medical-related employee information, it is always critical to maintain the confidentiality of the employee’s health information, including their identity. According to the CDC’s employer guidance, once an employee is either suspected or confirmed to have COVID-19, employers should ask the employee who they came into close proximity contact with while at work during the previous 14 days. Close proximity contact is considered to be between three and six feet. The coworkers identified should be advised that they may have been exposed to COVID-19 and they should be advised to self-monitor for symptoms.
Can an Employee Refuse to Come to Work if They Fear Infection?
Under OSHA regulations, employees are only entitled to refuse work if they believe they are in “imminent danger.” Section 13(a) of the OSHA law defines “imminent danger” to include “any conditions or practices in any place of employment which are such that a danger exists which can reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act.”
Put simply, the threat must be immediate or imminent, which means that an employee must believe that death or serious physical harm could occur within a short time. For example, while continuing to require an employee to engage in business travel to China may rise to this threshold, but most work conditions in the U.S. do not. That being said, these are unique times and you should continue to examine all facts and circumstances on a case-by-case basis when answering this question.