Updated on 01/06/21
What obligations do I have to try to protect my employees from contracting the virus?
Employers have an affirmative obligation and duty to provide a safe work environment for their employees under the Occupational Safety and Health Act (“OSHA”). Under OSHA, employers are required to provide a working environment that is free from hazards that are likely to cause serious harm or death.
Although you have this obligation, taking it too far and implementing policies and procedures that are overly broad and have the potential to impact employees based on their national origin or disability could expose you to a discrimination lawsuit.
In order to avoid crossing the relatively fine line from a policy or procedure that properly protects your employees and business to one that that could expose you to litigation, the policies and procedures put in place must be proportionate to the risk imposed by the coronavirus.
If an employee tests positive for the virus, what are my obligations to my other employees in terms of disclosure and shutting down office operations? What are my obligations to the infected employee?
Employers need to keep in mind that The Americans with Disabilities Act ("ADA") confidentiality applies to communications. Therefore, employers should not disclose the identity of an employee diagnosed with, or suspected of having, the coronavirus (unless otherwise directed by government).
Instead, employers should put other employees on notice of potential exposure and should send a communication:
- Reporting that there has been a confirmed case of a co-worker having contracted the virus;
- Urging employees to be careful in observing their own symptoms; and
- Directing employees to avoid the office and seek medical attention if symptoms occur.
Employers should reach out separately to any smaller populations that may have been at a higher risk of close contact with the affected employee (i.e. shared cubicle block, officemate, recently in meetings together).
Employers should carefully consider whether and how to disclose suspected exposure based on various factors, including:
- Likelihood of infection based on other facts (e.g., employee has had exposure to someone who has been exposed, employee recently travelled to hot spot, absence of other indicators of likely exposure);
- Potential extent of exposure within the workplace;
- Timing of confirmation of test;
- Impact on business of disclosing (e.g., potentially unnecessary anxiety) vs. impact of not disclosing (distrust of employees who may subsequently blame employer for subsequent spread).
Is it ok to have in-person meetings so long as the participants follow social distancing guidelines?
To the extent possible, it is recommended to use videoconferencing or teleconferencing for work-related meetings and gatherings. Employers should consider canceling, adjusting, or postponing large work-related meetings or gatherings that can only occur in person.
When videoconferencing or teleconferencing is not possible, social distancing guidelines should be followed. It is recommended to limit the number of in-person attendees at meetings if possible and to hold meetings in open, well-ventilated spaces.
Some states may have stricter guidelines regarding in-person meetings and should be consulted depending on the employer’s location.
What cleaning and disinfecting efforts are considered best practices?
The CDC recommends the following measures to maintain a healthy work environment:
- Consider improving the engineering controls using the building ventilation system. This may include increasing ventilation rates and increasing the percentage of outdoor air that circulates into the system
- Support respiratory etiquette and hand hygiene for employees, customers, and worksite visitors:
- Direct employees to visit the CDC webpage regarding coughing and sneezing etiquette and handwashing hygiene for more information (https://www.cdc.gov/coronavirus/2019-ncov/prepare/prevention.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fabout%2Fprevention.html).
- Discourage handshaking – encourage the use of other noncontact methods of greeting.
- Place posters that encourage hand-washing to help stop the spread at the entrance to your workplace and in other workplace areas where they are likely to be seen.
- Place hand sanitizers in multiple locations to encourage proper hygiene.
- Provide soap and water in the workplace. If soap and water are not readily available, use alcohol-based hand sanitizer that is at least 60% alcohol. Ensure that adequate supplies are maintained.
- Provide tissues and no-touch disposal receptacles.
- Perform routine environmental cleaning:
- Routinely clean all frequently touched surfaces in the workplace, such as workstations, keyboards, telephones, handrails, and doorknobs.
- If surfaces are dirty, they should be cleaned using a detergent or soap and water prior to disinfection.
- For disinfection, most common EPA-registered household disinfectants should be effective. Follow the manufacturer’s instructions for all cleaning and disinfection products (e.g., concentration, application method and contact time, etc.).
- Discourage workers from using other workers’ phones, desks, offices, or other work tools and equipment, when possible. If necessary, clean and disinfect them before and after use.
- Provide disposable wipes so that commonly used surfaces (for example, doorknobs, keyboards, remote controls, desks, other work tools and equipment) can be wiped down by employees before each use.
This is a fluid and rapidly changing situation and these resources are current only as of the date of publication. We recommend that you contact your local Quarles & Brady attorney regarding the most up-to-date information or with any other questions regarding this subject matter, or contact Otto Immel: (239) 659-504 / [email protected].