3. Health and Safety Measures
The CDC has issued new Guidance with detailed instructions on cleaning and disinfecting public spaces, workplaces, businesses, schools, and homes in preparation for reopening following COVID-19 shutdowns. The Guidance includes a Cleaning and Disinfection Decision Tool that distills the advice into a flow chart with different recommendations depending on whether the area is indoors, outdoors, frequently used, and the type of surface involved.
Additional information on CDC recommendations for employers and best practices is available on the Jackson Lewis website: CDC Issues Guidance on Preparing to Reopen Workplaces, Businesses, Schools After COVID-19 Shutdown.
Social Distancing Measures
Employers should consider how best to achieve social distancing measures through installation and use of physical barriers, changes in staffing occupancy (e.g., 25%-50% of capacity), and procedures for use of common areas (e.g., limiting the number of individuals entering a room and prohibiting congregation in common areas). Some measures that may be helpful include staff rotations (e.g., having some staff work Monday, Wednesday, and Friday in the workplace while the remainder are remote, with a switch occurring on Tuesday and Thursday), and setting up a path of travel or flow that prevents individuals from coming in close contact when traveling through hallways or stairwells. Employers also may want to consider installing physical barriers in open office environments and analyzing the air flow patterns of ventilation systems. For some workplaces where social distancing measures are unlikely to be achieved, the employer may want to consult with a health consultant or infectious disease expert, to ensure identification of appropriate controls that fully consider any unique designs or issues with the workspace or the type of work being performed.
If the employer is in a jurisdiction that has an applicable state or local predictive scheduling law, it will have to consider whether the schedule change will trigger advance notice or premium pay obligations under that predictive scheduling law. Some – but not all -- jurisdictions have issued recent guidance relaxing advance notice and premium pay obligations for changes due to COVID-19 reasons. As is often the case, a key consideration in the process is clear communication with employees, preferably in writing.
For more on social distancing and employee safety protocols, a recording of a recent Jackson Lewis webinar on the topic is available here.
Contact Tracing Apps/Social Distancing Wearables
As to contact tracing, many employers are considering various apps, wearables, and other technologies to assist with distancing, screening, and contact tracing. Employers should consider these technologies carefully. In particular, employers should confirm their understanding about how the technology works, the kind of information collected, and the safeguards the vendor has in place if it is storing information. Note also, that in the case of contact tracing, some apps may track the geolocation of employees which raises significant privacy issues. Employers need to ensure they are not violating state anti-tracking laws and consider employee expectations of privacy.
For more on the privacy/security concerns of this technology, a full analysis is available on the Jackson Lewis website here.
On April 23, 2020, the EEOC updated its COVID-19 informal guidance and stated that during the pandemic, employers may administer a COVID-19 test before permitting employees to enter the workplace but should ensure that any such test is accurate and reliable in order to be considered job-related and consistent with business necessity. Employers may review guidance from the U.S. Food and Drug Administration about what may or may not be considered safe and accurate testing, as well as guidance from the CDC or other public health authorities. Importantly, accurate testing reveals only if the virus is currently present; a negative test does not mean the employee will not acquire the virus later. On June 17th, the EEOC issued updated guidance regarding antibody testing before permitting employees to reenter the workplace. An antibody test constitutes a medical examination under the ADA. In light of CDC’s Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace,” an antibody test at this time does not meet the ADA’s “job related and consistent with business necessity” standard for medical examinations or inquiries for current employees. Therefore, requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA.
Measuring an employee’s body temperature is a medical examination and ADA-covered employers that collect this information have a duty to treat it as confidential medical information consistent with the requirements of the ADA. This means that it should not be kept in the employee’s personnel file, it should be reasonably safeguarded, deleted when no longer needed, and disclosed only in limited circumstances. If the employer is subject to the California Consumer Privacy Act (“CCPA”), collecting this information from California residents may raise a CCPA issue depending on how the health screening is conducted (i.e. by the employer or a third-party vendor). If the health screening is conducted by the employer, the employee should be provided a CCPA notice specifying the categories of personal information collected as part of the health screening the purposes for which that personal information will be used. If the employer has previously provided a CCPA notice to employees, that notice should be reviewed to confirm it will cover the health screenings. If the health screenings are being conducted by a third-party, exceptions under HIPAA and the California Confidentiality of Medical Information Act (“CMIA”) may apply, and employers should review those exceptions carefully.
It is important to note that states and localities have specific requirements regarding temperature monitoring and other forms of health screening. Organizations should consult with local counsel before implementing a health screening program, to ensure compliance in the jurisdiction where the organization operates. For additional guidance on temperature monitoring/more expansive COVID-19 screening programs, check out Jackson Lewis’s Key Components of a COVID-19 Screening Program.