Can we ask an employee to stay home or leave work if they exhibit symptoms of COVID-19?

Yes.  Employers are permitted to ask employees exhibiting the signs and symptoms of COVID-19 to seek medical attention and get tested.  The federal Equal Employment Opportunity Commission (EEOC) has confirmed that advising workers to go home is permissible and not considered disability-related if the symptoms present are akin to those of COVID-19.

Can I take an employee’s temperature at work to determine whether they might be infected?

Yes.  The following are best practices for employers taking temperatures in the workplace:

• Implement a safe and consistent procedure designed to reduce the risk of coronavirus exposure (i.e., with respect to the individual administering the screening, as well as among those being screened);
• Ensure that the screen applies to all those entering the workplace, not just employees;
• Give employees and others prior notice about the screen and encourage them to self-monitor for COVID-19 symptoms and stay away from the workplace if they are symptomatic;
• Keep any documented results confidential in a file separate from the employee’s personnel file; and
• Share the screening results on a purely “need-to-know” basis as necessary to protect against the threat of exposure to coronavirus.

An employee may be infected with COVID-19 coronavirus without exhibiting recognized symptoms such as a fever.  Accordingly, temperature checks may not be the most effective method for protecting your workforce.

One of our employees has tested positive for COVID-19.  What should we do?

You should send home all employees who worked closely with the infected employee to ensure the infection does not spread.  Before the infected employee departs, ask them to identify all individuals with whom they worked in close physical proximity (within 6 feet) for a prolonged period of time (more than a few minutes) during the previous 14 days to ensure that you have a full list of those who should be sent home.  When sending employees home to self-quarantine, do not identify by name the infected employee.

One of our employees has a suspected but unconfirmed case of COVID-19.  What should we do?

Take the same precautions as noted above.  Treat the situation as if the suspected case is a confirmed case for purposes of sending home potentially infected employees.  Communicate with your affected workers to let them know that the employee (who you should not identify) has not yet tested positive for the virus but has been exhibiting symptoms that lead you to believe a positive diagnosis is possible.

One of our employees is suspected of having COVID-19 or has tested positive for COVID-19.  How do we ensure that our workplace is safe and healthy for our employees?

The CDC has provided the following guidelines for most non-healthcare workplaces that have a suspected or confirmed case:

• Close off areas used by the ill employee and wait as long as practical before beginning the cleaning and disinfection process to minimize potential for exposure to respiratory droplets.
• Open outside doors and windows to increase air circulation in the potentially contaminated area. If possible, wait up to 24 hours before beginning cleaning and disinfection.
• Cleaning staff should clean and disinfect all areas (e.g., offices, bathrooms, and common areas) used by the ill employee, focusing especially on frequently touched surfaces. For disinfection, diluted household bleach solutions, alcohol solutions with at least 70% alcohol, and most common EPA-registered household disinfectants should be effective.
• Cleaning staff should wear disposable gloves and gowns for all tasks in the cleaning process, including handling trash.
• Gloves and gowns should be removed carefully to avoid contamination of the wearer and the surrounding area. Be sure to clean hands after removing gloves.

One of our employees has refused to report to work due to fear of contagion with COVID-19.  Can they refuse to come in?

Employees are only entitled to refuse to work if they believe they are in “imminent danger.”  The Occupational Safety and Health Act (OSHA) 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.”  According to OSHA guidelines, an “imminent danger” exists where there is “threat of death or serious physical harm,” or “a reasonable expectation that toxic substances or other health hazards are present, and exposure to them will shorten life or cause substantial reduction in physical or mental efficiency.”

The threat to the employee must be immediate or imminent.  An employee must believe that death or serious physical harm could occur within a short time, for example, before OSHA could investigate the problem.  Requiring an employee to work with patients in a medical setting without personal protective equipment may rise to the level of an “imminent danger.”  Most working conditions in the United States, however, do not meet this high bar.

Can employers refuse an employee’s request to wear a face mask or respirator?

On April 3, 2020, the CDC issued guidance recommending the use of cloth face coverings in public settings where other social distancing measures are difficult to maintain. The CDC recommends the use of simple cloth face coverings to slow the spread of the virus, given that a significant portion of individuals with COVID-19 are asymptomatic. The CDC made clear in its guidance that the cloth face coverings being recommended are not surgical masks or N-95 respirators. Given this new guidance from the CDC, it is recommended that employers do not refuse an employee’s request to wear a mask in the workplace.

What precautions are needed for individuals who are taking temperatures?

To protect the individual who is taking temperatures, you must first assess the risk to which the individual may be exposed. The safest thing to do would be to assume that the tester is going to be exposed to someone who is infected with COVID-19 who may cough or sneeze during the temperature check. Based on that anticipated exposure, you must then determine what mitigation efforts can be used to protect the employee, including use of personal protective equipment (PPE) such as gowns, gloves, N95 respirators, and face shields. Different types of devices can be used to take a person’s temperature without exposure to bodily fluids.

One of our employees was sent home with a suspected or confirmed case of COVID-19.  When can they discontinue their self-quarantine and return to work?

The CDC has outlined three options for determining when a person with a suspected or confirmed case of COVID-19 may end their home isolation: (1) the time-since-illness-onset option; (2) the time-since-recovery option; or (3) the test-based option.

Time-since-illness-onset and time-since-recovery options:  Individuals with COVID-19 symptoms who were directed to care for themselves at home may discontinue their home isolation under the following conditions:

• At least three days (72 hours) have passed since recovery from COVID-19 symptoms, defined as resolution of fever without the use of fever-reducing medications and improvement in respiratory symptoms (e.g., cough, shortness of breath); and
• At least seven (7) days have passed since symptoms first appeared.

Test-based option:  Individuals who have COVID-19 symptoms and who were directed to care for themselves at home may discontinue home isolation under the following conditions:

• Resolution of fever without the use of fever-reducing medications;
• Improvement in respiratory symptoms (e.g., cough, shortness of breath); and
• Negative test results of an FDA approved test from at least two consecutive specimens collected less than twenty-four (24) hours apart.

Individuals with laboratory-confirmed COVID-19 who have not had any symptoms may discontinue home isolation when at least seven (7) days have passed since the date of their first positive COVID-19 diagnostic test and have had no subsequent illness.

For three (3) days following discontinuing a period of home isolation, asymptomatic individuals who have tested positive for COVID-19 should continue to limit their social contacts (stay at least 6 feet away from others) and wear a covering for their nose and mouth whenever they are in settings where other people are present.

Is COVID-19 a recordable illness for the purposes of completing OSHA logs?

OSHA recordkeeping requirements mandate that covered employers record certain work-related injuries and illnesses on their OSHA 300 log.  Under recently released guidance, employers must record instances of workers contracting COVID-19 if the worker contracts the virus while on the job.

Employers are responsible for recording cases of COVID-19 if:

• The case is a confirmed case of COVID-19;
• The case is work-related; and
• The case involves one or more of the general recording criteria set forth in OSHA regulations (e.g. medical treatment beyond first-aid, days away from work).

Recognizing the difficulty in determining whether COVID-19 was contracted while on the job, OSHA will not enforce recordkeeping requirements that would require employers in areas where there is ongoing community transmission of the virus to make work-relatedness determinations for COVID-19 cases, except where:

• There is objective evidence that a COVID-19 case may be work-related; and
• The evidence was reasonably available to the employers.

OSHA’s waiver of enforcement does not apply to employers in the healthcare industry, emergency response organizations (e.g., emergency medical, firefighting, and law enforcement services), and correctional institutions in areas where there is ongoing community transmission.  These employers must continue to make work-relatedness determinations.

 

To learn more, contact Jean Harrington.

Or visit Duffy & Sweeney’s COVID-19 Resource Center here.