What Do Employers Need to Know in Dealing with COVID-19

By Sean Modjarrad, smodjarrad@modjarrad.com 

As US cases multiply, every one is trying to figure out what to do. This virus only became known to the world about 14 weeks ago. This new virus first identified in Wuhan, China in late 2019 has been spreading across the globe and is now in the United States. The new coronavirus, COVID-19, is not a flu but a pneumonia-like infection. Coronaviruses, so called because of their crown like shape, range from the common cold to SARS-CoV and 2012’s MERS (Middle East Respiratory Syndrome). They differ from Avian (H1N1) influenza and swine flu.

The virus symptoms manifest as a mild to severe respiratory illness with fever, cough, and difficulty breathing. The Centers for Disease Control (CDC) believes at this time that symptoms may appear in as few as two days or as long as 14 days after exposure. Unfortunately, at this point there is no easy way to test for the COVID-19 coronavirus. A CDC-developed laboratory test kit to detect the COVID-19 coronavirus began shipping in February to select qualified U.S. and international laboratories.

People can catch COVID-19 from others who have the virus. The disease can spread from person to person through small droplets from the nose or mouth which are spread when a person with COVID-19 coughs or exhales. These droplets also land on objects and surfaces around the person. Other people then catch COVID-19 by touching these objects or surfaces, then touching their eyes, nose, or mouth. Therefore, it is important to stay more than 1 meter (3 feet) away from a person who is sick. The CDC recommends as much as 6 feet. It is possible to catch the virus from someone even before they have symptoms, but little is known about this aspect of the virus at this time. It may be possible that a person can get COVID-19 by touching a surface or object that has the virus on it and then touching their own mouth, nose, or possibly their eyes, but this is not thought to be the main way the virus spreads.

Workplace Issues

If any employee presents themselves at work with a fever or difficulty in breathing, this indicates that they should seek medical evaluation. While these symptoms are not always associated with influenza and the likelihood of an employee having the COVID-19 coronavirus is extremely low, it pays to err on the side of caution. Retrain your supervisors on the importance of not overreacting to situations in the workplace potentially related to COVID-19 in order to prevent panic among the workforce.

Here is the list of questions that employers and employees need to know:

1. Can an employer ask an employee to stay home or leave work if he or she exhibits symptoms of the COVID-19 coronavirus or the flu?

Yes, employers are permitted to ask employees to seek medical attention and get tested for COVID-19, and under most situations, employers can ask them to leave work.

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

Taking an employee’s temperature may be unlawful if is not job-related and consistent with business necessity. The inquiry and evaluation into whether taking a temperature is job-related and consistent with business necessity is factspecific and will vary among employers and situations. You should exercise caution before relying on media reports in an attempt to justify the taking of your employees’ temperature without objective evidence that there is an actual threat to your business. Moreover, as a practical matter, an employee may be infected with the COVID-19 coronavirus without exhibiting recognized symptoms such as a fever, so temperature checks may not be the most effective method for protecting your workforce. The Americans with Disabilities Act (ADA) places restrictions on the inquiries that an employer can make into an employee’s medical status, and the Equal Employment Opportunity Commission (EEOC) considers taking an employee’s temperature to be a “medical examination” under the ADA. The ADA prohibits employers from requiring medical examinations and making disabilityrelated inquiries unless (1) the employer can show that the inquiry or exam is job-related and consistent with business necessity, or (2) the employer has a reasonable belief that the employee poses a “direct threat” to the health or safety of the individual or others that cannot otherwise be eliminated or reduced by reasonable accommodation.

3. An employee has tested positive for COVID-19. What should the employer do?

The employer should send home all employees who worked closely with that employee for a 14-day period of time to ensure the infection does not spread. Before the employee departs, ask them to identify all individuals who worked in close proximity (three to six feet) from them in the previous 14 days to ensure you have a full list of those who should be sent home. When sending the employees home, do not identify the infected employee by name or the employer could risk a violation of confidentiality laws. The employer may also want to consider asking a cleaning company to undertake a deep cleaning of your affected workspaces. If the sick employee worked in a shared office building or area, the employer should inform building management so they can take whatever precautions they deem necessary.

4. One of the employees has a suspected but unconfirmed case of COVID-19. What should the employer do?

Employers should take the same precautions as noted above. Employers should treat the situation as if the suspected case is a confirmed case for purposes of sending home potentially infected employees. Employers should communicate with the affected workers to let them know that the employee has not tested positive for the virus but has been exhibiting symptoms that lead the employer to believe a positive diagnosis is possible.

5. How can Employers distinguish between a “suspected but unconfirmed” case of COVID-19 and a typical illness?

There is no easy way for employers to make this determination, but employers should let logic guide your thinking. The kinds of indicators that will lead the employer to conclude an illness could be a suspected but unconfirmed case of
COVID-19 include whether that employee traveled to a restricted area that is under a Level 2, 3, or 4 Travel Advisory according to the U.S.
State Department, whether that employee was exposed to someone who traveled to one of those areas, or similar facts. You should err on the side of caution, but not panic.

6. One of the employees self-reported that they came into contact with someone who had a presumptive positive case of COVID-19. What should the employer do?

Employers should take the same precautions as noted above. Employers should treat the situation as if the suspected case is a confirmed case for purposes of sending home potentially infected employees. Employers should communicate with the affected workers to let them know that the employee is asymptomatic for the virus but employer is acting out of an abundance of caution.

7. One of the employees has been exposed to the virus but only found out after they have interacted with clients and customers. What should we do?

Employers should take the same precautions as noted above with respect to coworkers, treating the situation as if the exposed employee has a confirmed case of COVID-19 and sending home potentially infected employees that he/she came into contact with. As for third parties, employers should communicate with customers and vendors that came into close contact with the employee to let them know about the potential of a suspected case.

8. If an employer learns or suspects that one of its employees has COVID-19, do they have a responsibility to report this information to the CDC?

There is no obligation to report a suspected or confirmed case of COVID-19 to the CDC. The healthcare provider that receives the confirmation of a positive test result is a mandatory reporter who will handle that responsibility.

9. What steps can employers take now to minimize the risk of transmission?

Repeatedly, creatively, and aggressively encourage employees and others to take the same steps they should be taking to avoid the seasonal flu, which is already one of the worst flus in the last 10 years. For the annual influenza, SARS, avian flu, swine flu, and the COVID-19 virus, the best way to prevent infection is to avoid exposure. Perhaps the most important message employers can give to employees is to stay home if sick. In addition, instruct workers to take the same actions they would to avoid the flu.

For example:

• Wash hands often with soap and water for at least 20 seconds. If soap and water are not available, use an alcohol-based hand sanitizer
• Avoid touching eyes, nose, and mouth with unwashed hands
• Avoid close contact with people who are sick .Stay home when sick
• Cover cough or sneeze with a tissue, then throw the tissue in the trash
• Clean and disinfect frequently touched objects and surfaces
• Ensure that employees have ample facilities to wash their hands, including tepid water and soap, and that third-party cleaning/custodial schedules are accelerated.
• Teleconference in lieu of meeting in person if available
• Educate your employees about COVID-19, its symptoms, and the potential health concerns associated with any travel at this time
• Have a single point of contact for employees for all concerns that arise relating to health and safety
• Wear personal protective equipment, such as gloves and goggles, if touching or .working bloodborne pathogens
• Follow updates from the CDC and the World Health Organization (WHO) regarding additional precautions

10. Can an employee refuse to come to work because of fear of infection?

Employees are only entitled to refuse to work if they believe they are in imminent danger. Section 13(a) of the Occupational Safety and Health Act (OSH Act) 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.” OSHA discusses imminent danger as when 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 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, before OSHA could investigate the problem. Requiring travel to China or to work with patients in a medical setting without personal protective equipment at this time may rise to this threshold. Most work conditions in the United States, however, do not meet the elements required for an employee to refuse to work. Once again, this guidance is general, and employers must determine when this unusual state exists in your workplace before determining whether it is permissible for employees to refuse to work.

In addition, Section 7 of the National Labor Relations Act (NLRA) extends broad-based statutory protection to those employees (in union and non-union settings alike) to engage in “protected concerted activity for mutual aid or protection.” Such activity has been defined to include circumstances in which two or more employees act together to improve their employment terms and conditions, although it has been extended to individual action expressly undertaken on behalf of co-workers. On its own website, the National Labor Relations Board (NLRB) offers a number of examples, including, “talking with one or more employees about working conditions,” “participating in a concerted refusal to work in unsafe conditions,” and “joining with coworkers to talk to the media about problems in your workplace.” Employees are generally protected against discipline or discharge for engaging in such activity.

11. Can employers in the United States refuse an employee’s request to wear a medical mask or respirator?

Yes, under most circumstances. Under the OSHA respiratory protection standard, 29 C.F.R. 1910.134, which covers the use of most safety masks in the workplace, a respirator must be provided to employees only “when such equipment is necessary to protect the health of such employees.” Likewise, OSHA rules provide guidance on when a respirator is not required: “an employer may provide respirators at the request of employees or permit employees to use their own respirators, if the employer determines that such respirator use will not in itself create a hazard” (29 C.F.R. 1910.134(c) (2)). In almost all work situations, however, there is no currently recognized health or safety hazard – even when employees work near other people and thus there is no need for a mask or respirator.

The WHO has stated that people only need to wear face masks if they are treating someone who is infected with the COVID-19 coronavirus. The WHO has also said that wearing masks may create a false sense of security among the general public. Doctors agree that the best defense against the COVID-19 coronavirus and influenza is simply washing your hands. Thus, the consensus is that there are more appropriate measures of defense than wearing a surgical mask or respirator.

12. Can an employee refuse to work without a mask?

OSHA has addressed the common question of whether an employee can simply refuse to work in unsafe conditions. The safety agency provides the following guidance, which wouldn’t require the use of a mask or respirator in most situations. An employee’s right to refuse to do a task is protected if all of the following conditions are met:

• Where possible, you have asked the employer to eliminate the danger, and the employer failed to do so;
• You refused to work in “good faith.” This means that you must genuinely believe that an imminent danger exists;
• A reasonable person would agree that there is a real danger of death or serious injury; and
• There isn’t enough time, due to the urgency of the hazard, to get it corrected through regular enforcement channels, such as requesting an OSHA inspection.

Given the consensus that face masks are only necessary when treating someone who is infected with the COVID-19 coronavirus or influenza, masks are likely not necessary to protect the health of most employees. Therefore, most employers do not have to provide, or allow employees to wear, a surgical mask or respirator to protect against the spread of the COVID-19 coronavirus or influenza. The use of the word “may” in OSHA’s respiratory protection standard makes it clear that when a respirator is not necessary to protect the health of an employee, it is within the discretion of the employer to allow employees to use a respirator. Accordingly, you are well within the applicable OSHA standard to deny an employee’s request to wear a surgical mask or a respirator in almost all situations.

Absent a legally recognized disability, unique physical condition, or an occupation where employees work directly with those impacted by a condition such as the COVID-19 coronavirus or flu, you are generally not required to allow workers to wear masks at work.

13. What steps should employers take if employers use chemicals to combat the COVID-19 coronavirus?

Employers should be mindful of the specific requirements of OSHA’s Hazard Communication standard if new chemicals, or temporary employees, are introduced into work areas to combat the COVID-19 coronavirus. You are required to provide employees with effective information and training on hazardous chemicals in their work area at the time of their initial assignment, and whenever a new chemical hazard the employees have not previously been trained on is introduced into their work area. A comprehensive hazard communication program should include labeling and other forms of warning, safety data sheets, and employee training. Now is also a good time to retrain employees under OSHA’s bloodborne pathogens standard, including revisiting and communicating the elements of your exposure control plan.

14. What should healthcare employers do to protect workers from exposure to the COVID-19 coronavirus?

Healthcare personnel caring for patients with confirmed or possible COVID-19 should adhere to CDC recommendations for infection control and prevention (ICP):

• Assess and triage these patients with acute respiratory symptoms and risk factors for COVID-19 to minimize chances of exposure, including placing a facemask on the patient and isolating them in an Airborne Infection Isolation Room (AIIR), if available
• Use Standard Precautions, Contact Precautions, and Airborne Precautions and eye protection when caring for patients with ;confirmed or possible COVID-19
• Perform hand hygiene with alcohol based hand rub before and after all patient contact, contact with potentially infectious material, and before putting on and upon removal of PPE, including gloves. Use soap ;and water if hands are visibly soiled
• Practice how to properly don, use, and doff personal protective equipment (PPE) in a manner to prevent self-contamination; and
• Perform aerosol-generating procedures in an AIIR, including collection of diagnostic respiratory specimens, while following appropriate IPC practices, including the use of appropriate PPE

In addition, healthcare employers must comply with any state-specific requirements to protect healthcare workers from exposure.

For instance, healthcare facilities in California are required to follow recommendations under CAL/OSHA’s Aerosol Transmissible Diseases (ATD) Standard, Title 8 of the California Code of Regulations Section 5199. Because COVID-19 meets the criteria for a novel aerosol transmissible pathogen under the ATD Standard,
California healthcare employers must provide a powered air purifying respirator with a HEPA filter(s), or a respirator providing equivalent or greater protection, to employees who perform high hazard procedures on COVID-19 persons under investigation or confirmed cases.