Texas, like many states, is allowing more businesses to reopen and at greater capacities as it moves into Phase II of its COVID-19 pandemic response plan. See Executive Order GA-23, available at https://gov.texas.gov/uploads/files/press/EO-GA-23_phase_two_expanding_opening_COVID-19.pdf. This is good news for business and the economy, but also presents several unique challenges as employers must continue to ensure the safety of their employees.
Several government agencies, including OSHA, CDC, and the EEOC, have issued guidance on how to comply with the duty to keep employees safe in the context of COVID-19. See, e.g., Guidance on Preparing Workplaces for COVID-19, https://www.osha.gov/Publications/OSHA3990.pdf; Reopening Guidance for Cleaning and Disinfecting Public Spaces, Workplaces, Businesses, Schools, and Homes, https://www.cdc.gov/coronavirus/2019-ncov/community/reopen-guidance.html. It is important that employers understand and follow this guidance so that they keep employees safe and minimize legal risk. Below are some of the highlights of the agencies’ guidance:
Guidance on Reducing Potential Exposure in the Work Environment
There are numerous steps employers can and often should take to minimize COVID-19 risks in the workplace. These include:
• Develop a plan for cleaning and disinfecting (CDC guidance): The CDC recommends employers develop a plan for cleaning, and, for frequently touched surfaces such as light switches, doorknobs, tables, phones, a plan for disinfecting using EPA approved disinfectants. See List N: Disinfectants for Use Against SARS-CoV-2, https://www.epa.gov/pesticide-registration/list-n-disinfectants-use-against-sars-cov-2. (EPA approved disinfectants).
• Implement workplace controls (OSHA guidance): OSHA recommends employers utilize a “hierarchy of controls” to limit potential COVID-19 exposure. This includes engineering controls in appropriate situations, such as installing physical barriers, installing high-efficiency air filters, and switching to a drive-through window for customer services; administrative controls, such as encouraging sick workers to stay home, changing schedules to minimize the number of employees on site for a given shift, and discontinuing non-essential travel; and issuing personal protective equipment.
• Social Distancing and Hygiene: All of the agencies and resources emphasize that employers should strive to maximize the physical space between employees. First, it is important to assess which employees’ presence is valuable to the operation of the business, and telecommuting should continue to be encouraged for non-critical workers. For those employees who return, employers should encourage social distancing to maintain at least six feet of separation between employees, customers, and visitors. Also, employers should consider closing common areas such as break rooms and should emphasize hygienic practices such as washing hands with soap and water for at least 20 seconds.
Guidance on Handling Sick Employees and Screening for COVID-19 and Its Symptoms
In addition to preparing the workplace for the return of employees, employers should ensure that sick employees stay home to prevent exposing others. While the Americans with Disabilities Act (“ADA”) generally places certain restrictions on employers’ ability to inquire into employees’ health or conduct medical exams, the EEOC has issued guidance clarifying that because COVID-19 presents a direct threat to employees, employers may lawfully make certain inquiries and conduct certain exams in light of the COVID-19 pandemic. As a result, the follow practices may be implemented:
• Sick employees may (and should) be sent home: Employees exhibiting symptoms of COVID-19 should be sent home.
• Employers may screen for COVID-19 or its symptoms, such as by monitoring employees’ body temperature and administering COVID-19 testing if the tests are accurate and reliable. See Interim Guidance for Businesses and Employers Responding to Coronavirus Disease 2019 (COVID-19), May 2020, https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html; General Business Frequently Asked Questions, https://www.cdc.gov/coronavirus/2019-ncov/community/general-business-faq.html. Such results must be kept confidential in accordance with the ADA.
• Employers may NOT inquire as to whether an asymptomatic employee has an underlying condition that would make them more susceptible to COVID-19. However, EEOC guidance recommends that if such an employee voluntarily discloses such information, the employer may inquire as to what reasonable accommodation the employee believes would be needed.
For additional recommendations, see Pandemic Preparedness in the Workplace and the Americans with Disabilities Act, https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act.
The Bottom Line
Government agencies are providing guidance on how employers can adequately respond to the COVID-19 threat, which is especially important as businesses reopen or expand capacity. The foregoing highlights several important considerations based on currently available guidance, but employers should carefully review both federal and state guidelines and consult competent legal counsel to ensure compliance with legal requirements, to minimize exposure risks, and to maximize productivity.