Christian Fonss/Mariel Estigarriba/Nicole Golden
What Employers Should Know and How to Prepare for Reopening the Workplace
Maintaining Employee Health
Maintaining employee health should be the focus of employers when preparing for the reopening process in order to prevent the spread of COVID-19 in the workplace. The Americans with Disabilities Act (ADA) allows employers to make disability-related inquiries and conduct medical exams if they are job-related as well as relating to business needs. This may include requiring employees to self-report symptoms as well as a diagnosis of COVID-19. Employers may not treat employees with protected conditions unlawfully in terms of decisions involving workplace health screenings and exclusion as well as focus only on employees with protected conditions.
The overall goal, as highlighted by local authorities, is to reduce the risk of exposure, which ultimately can be achieved through the development of an infectious disease response and preparedness plan. In order to be implemented, this plan must be distributed to all employees and posted at each entrance of an office or place of work. CDC guidelines suggest talking with employees about planned changes as well as seeking their input prior to implementation. In creating the office’s Safe Reopening Plan, employers must consider how and where employees may be exposed, which is dependent on each business. Additionally, without violating privacy regulations, employers must consider that employees may be living with people at a higher risk for COVID-19 or may be at a higher risk themselves based on age and other underlying conditions.
It is important that employers implement daily procedures for employees upon arrival to the workplace to check for signs and symptoms as necessary. These procedures must be communicated with employees as well as other important messaging related to COVID-19. Health checks must be conducted safely and responsibly in accordance with privacy regulations. According to the California Consumer Privacy Act (CCPA), employers must take reasonable measures in safeguarding the personal information of employees. Employers may take steps to determine if employees entering the workplace have COVID-19 through temperature checks and through administering tests and requiring questionnaires. If an employer were to question employees entering the workplace, they may ask about recent international travel in compliance with state privacy laws, symptoms if an employee appears to be presenting them, and whether an employee has been living with anyone recently diagnosed with the virus or presenting symptoms related to the virus. If an employee’s temperature is above 100 degrees, the employee should not be allowed to enter the workplace and be advised to go home and call their healthcare provider.
Employers must create tentative plans in the case of an employee becoming sick, which involves encouraging employees who are sick to stay home. It is important for employers to communicate regularly with local authorities and employees while monitoring any new developments. Additionally, employers should be prepared to refer to local health authorities if necessary. As the state of California adjusts its policies regarding reopening regulations, employers must update employees on revised guidelines. All businesses need to identify a health and safety coordinator in order to ensure adherence with the local county’s public health orders and the Safe Reopening Plan. If an employee becomes sick, it is also extremely important to follow isolation and quarantine orders in accordance with state law. These orders apply to individuals diagnosed with COVID-19 but also those who have symptoms of COVID-19, such as cough, fever, and shortness of breath. A quarantine order should be in place for those who have been in close contact with someone previously diagnosed with COVID-19. High-risk workers should be encouraged to self-identify and employees who may have been exposed to the virus should self-monitor for signs and symptoms. In order to ensure the most up-to-date safety practices are being upheld, employers should continuously refer to public health guidelines.
Employee and Employer Rights in Accordance with California Law
This next section will outline the rights of employees and employers in accordance with California state law. To begin, employers should avoid making unnecessary medical inquiries in compliance with ADA as well as the Age Discrimination in Employment Act (ADEA) regulations. During a pandemic, however, ADA-covered employers may ask employees if they are experiencing any symptoms if an employee reports feeling ill at work. Also, employers should require employees to disclose if they or someone they are living with are experiencing any symptoms. Employers cannot require disclosed information regarding an employee’s health background, as inquiries into whether an employee has COVID-19 symptoms or the virus itself are already limited. Additionally, making disability-related inquiries is prohibited, especially if an employee is not presenting symptoms.
It is also important to highlight discrimination in the workplace, as California state laws prohibiting harassment still apply during a pandemic. Determinations of employee health risk cannot be based on race or ethnicity, and confidentiality of medical history must be maintained. It is considered unlawful discrimination to exclude higher-risk employees with underlying medical conditions from the workplace. This includes employers who are already aware of an employee’s underlying health condition, but the employee has not made any request for an accommodation. In this case, the ADA does not require that an employer take any form of action on behalf of the employee. However, employers can request that employees inform them on travel plans or if they have previously traveled to countries considered to be areas of higher risk. Employees do maintain their right to medical privacy, so employers may not inquire into areas of privacy. Lastly, according to OSHA guidelines and the California Department of Industrial Relations, it is illegal for employers to fire employees, reduce their hours, or retaliate in any form in response to an employee exercising their labor rights, especially during a pandemic.
California employers are required to establish an Injury and Illness Prevention Program (IIPP) to protect their employees from any workplace hazards which may include infectious diseases. This may involve sending employees home or to a medical facility if necessary. Employees should not be allowed to return to work until ten days have passed since symptoms first appeared and when three days pass without a fever. When screening employees for health checks, these results must remain confidential. In the case of an employee becoming sick, an employer may ask if an employee is willing to disclose any symptoms or diagnosis. Employers should disclose to other employees and public health officials when an employee has tested positive for coronavirus, without disclosing the identity of the employee. An employer may also ask an employee who they have come into contact with in the office in the past 14 days. Those who came into contact with the sick co-worker should be notified immediately and told to take any cautionary measures. The ADA allows employers to make certain medical inquiries of employees only if they determine the employee poses a direct threat to the health and safety of themselves or other co-workers. A direct threat, in this case, would be considered a significant risk of substantial harm to the health and safety of employees or the individual.
Recommendations for Reopening
CDC guidelines for reopening recommend promoting a variety of healthy hygiene practices including handwashing and the use of facial coverings when possible. It is also important to establish respiratory etiquette, which involves covering your nose and mouth when sneezing and coughing as well as using the nearest wastebasket to dispose of tissues after usage. Respiratory etiquette also involves washing hands frequently with non-antimicrobial soap and water or any alcohol-based or antiseptic handwash after coming into contact with any contaminated object or respiratory secretions. Intensified disinfecting, cleaning, and ventilation within office spaces should also be encouraged as well as using cleaning products with EPA-approved viral pathogens that are effective against the virus.
Maintaining social distancing must remain extremely important and is an essential component of reopening safely. Employers should encourage teleworking as well as limiting access to communal spaces. Additionally, large events must be limited and staggered shifts as well as breaks for employees should be implemented. Lastly, desks must be separated by at least six feet and employees should be discouraged from using equipment belonging to other employees. It is important for employers to outline administrative controls and PPE that employees can use to prevent the spread of the virus. When outlining reopening plans, it is important for employers to not only highlight how they plan to prevent exposure but how they plan to uphold civil rights protections granted to employees.
Through the process of reopening, employers must communicate to employees about workplace protections and flexibilities. Employers should remain aware of employee concerns regarding pay, leave, health, safety, and other issues that may arise during the pandemic. Employers should also provide adequate and appropriate training as well as informative material regarding the health and safety of workers. This also includes providing necessary PPE to all employees. California law states that it is the obligation of business owners to ensure employees are complying with these regulations