COVID 19: Face Masks, Testing and What Employer and Their Employees Need to Know Moving Forward in the Workplace
COVID 19: Face Masks, Testing and What Employer and Their Employees Need to Know Moving Forward in the Workplace
According to the U.S. Equal Employment Opportunity Commission (“EEOC”) and the Occupational Safety and Health Act (“OSHA”), Employers must take precautions to protect employees (and customers) from COVID-19. The EEOC pandemic publication entitled “Pandemic Preparedness in the Workplace and the Americans With Disabilities Act”[1], answers common questions and creates a guideline.
Employers may and are encouraged to ask employees whether they are experiencing symptoms associated with the COVID-19 virus. These symptoms include dry cough, fever, shortness of breath, sore throat and chills and any other symptoms described by the CDC, and other public health authorities. If an employee’s response resonates with any COVID symptoms, the Employer has every right to send that employee home per CDC guidelines. In addition, before being allowed to return to work, the American with Disability Act allows Employers to require a doctor’s note from employees who contracted COVID-19 or had symptoms of the virus.
ADA covered employers may also measure their employee’s body temperature upon arrival to the workplace. If the employer wishes to keep a log of their employees’ temperatures, it must be kept in a separate confidential medical file for that employee. Employers are also allowed to administer COVID-19 tests to detect the virus in employees before the employees are allowed to enter into the workplace because any one individual that may test positive for the virus, poses a threat to the health of others in the workplace. If an employer decides to administer COVID-19 tests, they must make sure to be consistent and compliant with the ADA standard thus making sure the tests are accurate. The EEOC advises employers to create alternative methods to consider false- positives or false-negative tests. The results of any test- taking like the keeping of an employee temperature log, must be stored in a separate confidential medical file.
Also, according to OSHA, Employers are encouraged to require their employees to wear any of three face coverings, depending on the type of workplace exposure risks: cloth masks or face coverings, medical masks, or respirators. Each of the three types of face coverings perform a different level of protection against transmissible infectious agents. Cloth masks or face coverings can be commercially produced or homemade. Cloth masks are not as effective against airborne transmission due to the wearer’s loose fit and low filtration. They are more to protect others from the wearer’s infection of others. Medical or surgical masks are also worn to contain the wearer’s respiratory droppings and protect workers against splashes and sprays containing potentially infectious materials. Respirators are masks used to protect wearers from inhaling small particles such as the N-95 mask. The use of respirators requires proper training. Obviously, face shields simply guard against splashes from afront. Each of these, however are part of Personal Protective Equipment (”PPE”) that Employers may be required to provide to employees.
The General Duty Clause, Section 5(a)(1) of the OSHA[2], requires employers to provide employees with PPE if it is determined that the environment of the workplace is hazardous.
Social distancing in the workplace must still be implemented
If an employer is informed that an employee has contracted the COVID-19 virus, they may disclose the name of that employee to a public health agency in efforts to keep that employee and others safe. Any staffing companies or contractors who have entered the employer’s workplace may and is encouraged to inform the employer if they test positive for COVID-19 so that the employer may take necessary precautions to determine if any of the employees had contact with that temporary worker.
Employers are still encouraged to conduct business in a way that allows them to continue the hiring and onboarding process. Like with their employees, employers can screen job applicants for symptoms of COVID-19 but after and only after the employer makes the applicants a conditional job offer. This is an ADA rule that applies whether the applicant may have a disability. If after screening a job applicant has symptoms of the virus or the virus itself, employers can: delay the applicant’s start date and/or withdraw a job offer if the applicant is needed to start work immediately. What an employer is not allowed to do however, is postpone the start date or withdraw a job offer from any individual who may be pregnant or over the age of 65 because they are of higher risk of contracting COVID-19.
Employees with disabilities who request reasonable accommodations from their employers must be granted those accommodations if they are absent of undue hardship for the employers. Undue hardship constitutes as any accommodation that would but the employer in a financial bind. Accommodations that classify as low cost and that should be implemented into the workplace in efforts to protect those with disabilities are plexiglass, tables, or any other barriers to keep employees at a safe distance from customers and other co-workers. Employers may ask questions to help determine the disability of an employee and how the accommodation in which they are seeking will help them to perform their job duties efficiently.
Where customers are concerned, employers may require customers to wear protective gear such as face masks and gloves. Under the ADA, employers are required to have accommodations in place for customers who may not be able to wear the protective gear due to disabilities.
More details regarding this matter can be found here: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.
Other resources: https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act
Epps & Coulson, LLP
Attorneys Admitted to practice in
California, New York, Colorado,
Texas, Oregon and Hawaii
Information contained in this Memo is intended for informational and educational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney. While intended as information and educational, it is considered advertising under applicable various laws of some states.
[1] https://www.osha.gov/SLTC/covid-19/covid-19-faq.html#cloth-face-coverings
[2] https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act