As many Governors lift and modify shelter-in-place orders, employers need to give careful consideration to the health and safety, legal, and practical issues presented by returning their employees to the workplace. Best practice is to adopt a written policy that addresses your actions on these issues. While not mandatory, OSHA guidance suggests that a written Infectious Disease Preparedness and Response Plan is necessary. From a practical standpoint, a written plan can help prevent manager confusion and accidental dissemination of incorrect information. Additionally, a clearly written plan will support consistent treatment of employees, which is always important. Finally, a written plan will document that the employer prudently evaluated the need to provide a safe workplace, which may be important if an employee comes down with COVID-19 and claims that he/she was infected at work. The first lawsuit has already been filed against an employer claiming that an employee died due to the employer’s negligence in addressing and preparing its workplace for COVID-19.
Listed below are some of the most important things your Infectious Disease Preparedness and Response Plan should include. There is no “one size fits all” approach, as every workplace is different. However, at a minimum, you should include the following:
- Identify a team tasked with coordinating your business’s response to COVID-19 issues.
- Ensure that the team designates at least one person to frequently check federal, state, local, and tribal recommendations and guidance, and update the team so changes can be made if necessary. Here are some useful links for North Carolina employers:
- Evaluate the risk of exposure in the workplace, and depending on the extent of the COVID-19 outbreak and community spread, make a determination when it is safe for your business to re-open, taking into consideration the recommendations and requirements of federal, state, and local authorities, and the mitigation measures you can implement.
- Based on the risk of exposure, evaluate and determine what engineering, administrative, safe work practices, and other measures should be put in place to minimize exposure. These measures may include:
- Educate employees on Basic Infection Prevention measures like handwashing and cough/sneeze etiquette.
- Evaluate whether staggered start times or staggered days in the office will help reduce the risk of exposure and how you can manage and communicate employee schedules.
- Evaluate how you can implement social distancing in your workspaces.
- Evaluate whether face coverings should be mandatory, and if so, whether you will provide them to your employees.
- Educate employees not to use other’s phones, desks, office, or work tools.
- Evaluate your housekeeping/cleaning procedures and update them if necessary to address the potential for COVID-19 on surfaces.
- Decide whether you should take employees’ temperatures or inquire about symptoms, and if so, what steps you will take to ensure that such medical information is handled confidentially and retained in a medical file, not in personnel files.
- If your employees must interact with the public as part of their job, specifically evaluate how you can reduce their risk of exposure, and develop a plan to implement such mitigation measures before re-opening.
- Ensure that you have communicated to your workforce in writing that an employee who feels ill must not come to work, and that you have mandated in writing that an employee who becomes ill must notify specified individuals in the company. Be sure those individuals are prepared to find out who the affected employee may have come into contact with when at work immediately prior to becoming symptomatic. Be sure those employees understand the need to protect the confidentiality of employee medical information. The CDC recommends that employers not require a note from a Health Care Provider in order for an employee with COVID-19 symptoms or illness to have an excused absence.
- Develop a protocol for how you will handle a situation where an employee who has been in the office shows signs/symptoms of COVID-19 or tests positive. Identify what steps you will take to isolate the employee and safely get the employee home, how you will clean the office spaces where that employee has been, and how/what you will communicate with employees who have come into contact with that employee at work. Remember that you may not reveal the name of an employee who is ill because that would violate the ADA’s prohibition on release of medical information.
- Ensure that you have communicated the essential components of the Family First Coronavirus Response Act paid leave entitlements to employees and that you know how to administer and document these leaves.
- Be sure that your company is prepared to evaluate and implement accommodations for employees with underlying health conditions who have been advised not to come to work, or who are concerned that coming in to work places them at risk.
These are uncertain and rapidly changing times, so prudent employers will need to stay in front of governmental and regulatory changes in order to ensure that their Infectious Disease Preparedness and Response Plan stays current. The employment and benefits lawyers at Poyner Spruill LLP are well versed in the legal issues related to the pandemic and are able to help you with your plan and any other pandemic related legal issues.