The Centers for Disease Control and Prevention (“CDC”), OSHA, Cal/OSHA and local government level public health departments have issued emergency guidelines and some orders to assist with the response to COVID-19. The information available to employers faced with any of the above situations is fluid, sometimes difficult to find, and often unclear or inconsistent as they await further development or clarification. None of the guidelines, however, alters the basic OSHA and Cal/OSHA requirements that an employer provide employees with a safe workplace. Time waits for no guideline clarification, and given the current prevalence of workplace crises, many employers are faced with having to take action notwithstanding ambiguities in the available information. To that end, employers can follow these basic measures to address workplace COVID-19 issues arising from any of these three scenarios.
Employers may ask employees to notify HR and appropriate management if: (i) they have traveled to any of the high risk zones, or areas for which quarantining and self-sequestering are recommended, or have been exposed to individuals who have traveled to such regions; (ii) have any COVID-19 symptoms or have been in close physical contact with anyone who has exhibited such symptoms; or (iii) have been diagnosed with COVID-19 or have been in close physical contact with someone diagnosed with COVID-19. With this information, employers can make decisions about who reports and does not report to work, and workplace measures aimed at containing transmission, keeping in mind federal, state, county and city orders affecting onsite work.
In general, do not allow anyone who is sick with COVID-19 symptoms, has been diagnosed with COVID-19, or has been exposed to someone else exhibiting symptoms of, or diagnosed with, COVID-19 to report to work until they are either cleared by a healthcare professional, or at least 14 days after exposure to someone with the COVID-19 virus, and they are symptom free. An employer may properly request a doctor’s note confirming that an employee is cleared to return to work without restriction, before permitting an employee to return to work after having been out for COVID-19 related illness.
Be sure to protect the privacy of employees in these groups, to the fullest extent possible. Avoid sending an email announcing “Jon Doe” has Coronavirus. Instead, you can make an announcement that an employee has tested positive. If faced with having to ascertain who has potentially been exposed to a sick employee, you may have to exercise discretion on a case by case basis about what you disclose and to whom for the limited purpose of ascertaining with whom the sick employee had contact during the preceding 14 days in order to contain the potential spread of the virus. Be sure that decisions about what to disclose about any particular employee, and to whom, are narrow and based upon the need to maintain a safe workplace.
An employee who is sick or has tested positive for COVID-19 can still work from home, but only if well enough to work and actually working. Employees who are required to work from home should be provided necessary equipment and reimbursement for expenses incurred as a direct consequence of carrying out their job duties. Do not deduct paid sick leave or vacation time, or fail to pay employees for hours worked remotely. Non-exempt employees should receive clear instruction regarding compliant clocking in and clocking out, meal and rest period requirements, and the prohibition against overtime work without prior authorization for such work.
If an employee is using paid sick leave, or is not being paid, they should not be working. Even the most minor of tasks, such as checking email or voicemail, is sufficient to require an employer to pay a full week’s wages to an exempt employee. Non-exempt employees must be paid for any time that they work.
For employees who are fearful of contracting the virus, and are not symptomatic nor part of a high risk group, they can take available vacation time or use their sick leave time if an employer chooses to permit such use. However, in the face of a labor shortage, it may be necessary for employers to establish policies that prohibit employees from taking time off if they are not sick or have not been exposed to someone sick with COVID-19. These policies are compliant as long as they are applied uniformly and fairly under the circumstances and given the emergency guidelines, executive orders and acts that are in place at the time the decision is made.
If some of your employees fall into the high risk demographics, by virtue of age or underlying health conditions, you may consider setting these employees up to work from home.
Finally, Cal/OSHA requires general employers to perform routine environmental cleaning of shared workplace equipment and furniture, to implement measures to prevent or reduce infection hazards, and to provide training to employees on their COVID-19 infection prevention methods. These precautions include: providing washing facilities that have an adequate supply of cleansing agents, water and single use towels or blowers; implementing engineering controls where feasible and administrative control where practicable, or provide respiratory protection where engineering and administrative controls cannot protect employees. At present there is no guideline requiring specific cleaning protocols where a sick employee has been identified in the workplace. Given the broader obligations of an employer to protect employees from inhalation exposures that can result in illness, an employer may want to take the initiative to conduct a specific cleaning regimen to address risks created by an employee that may have introduced COVID-19 into the workplace.
