Updated Guidance To Employers From Federal EEOC and OSHA Regarding COVID-19

Within the last few days, two federal agencies, the Equal Employment Opportunity Commission (“EEOC”) and the Department of Labor’s (“DOL”) Occupational Safety and Health Administration (“OSHA”), issued new guidance related to the COVID-19 crisis.

EEOC

On April 9, the EEOC posted additional guidance for employers regarding COVID-19, the ADA, and other federal employment laws.

The guidance discusses the permissibility of whether employers can do the following:

• Ask employees about symptoms of COVID-19;
• Take body temperature of employees;
• Require employees with COVID-19 symptoms to stay home; and
• Require doctors’ notes certifying fitness for duty to return to work.

The guidance additionally does the following:

• Reminds employers of the obligation to maintain employee medical records (which may include COVID-19 information) separately from other personnel records.
• Authorizes an employer to disclose the names of employees with COVID-19 to public health agencies and authorizes a staffing agency or contractor that supplies the employer with employees to disclose the name of an employee with COVID-19.
• Reiterates that the employer may ask questions concerning COVID-19 and screen for symptoms, but reminds employers that these questions and screenings are like any other medical exam and hence may not be done prior to the making of a conditional job offer. If such an applicant then tests positive or becomes symptomatic, employment may be delayed and, if the employer needs the employee immediately, the employer may withdraw the offer.

OSHA

A day thereafter on April 10, 2020, OSHA issued interim guidance on employers’ duties related to reporting cases of COVID-19. This is to clarify employers’ responsibilities when it comes to reporting illnesses.

Under OSHA’s recordkeeping requirements, COVID-19 is a recordable illness, and employers are responsible for recording cases of COVID-19 if the case:

1. Is confirmed as a COVID-19 illness;
2. Is work-related as defined by 29 CFR 1904.5; and
3. Involves one or more of the general recording criteriain 29 CFR 1904.7, such as medical treatment beyond first aid or days away from work.

OSHA treats COVID-19 as a recordable illness if it meets the foregoing general principles (by contrast, colds and flus are not recordable illnesses). Despite expecting employers to treat COVID-19 as a recordable illness, OSHA recognizes that “employers  . . . may have difficulty making determinations about whether workers who contracted COVID-19 did so due to exposure at work” especially in fields other than healthcare, emergency response, and correctional institutions because of the strong possibility of “community transmission” with that type of employment Therefore, OSHA will “exercis[e] its enforcement direction in order to provide certainty to the regulated community.”

In other words, OSHA will not enforce regulations requiring COVID-19 illness reporting in such fields except where:

• There is objective evidence that a COVID-19 diagnosis may be work-related, such as where a cluster of cases emerge among workers in close proximity without an alternative explanation; and
• The evidence was reasonably available to the employer, such as from reports by employees or information learned during the employer’s general operation or management of the business.

OSHA clarified its enforcement discretion to “help employers focus their response efforts on implementing good hygiene practices in their workplaces, and otherwise mitigating COVID-19’s effects,” rather than on making difficult determinations as between work-related and community-related virus transmission. Despite issuing this directive, OSHA will continue to require that workers in the healthcare industry, emergency response organizations (such as EMS/EMTs, firefighters, and law enforcement), and correctional institutions “make work-relatedness determinations” given the greater likelihood of work-related transmission of the virus. In those industries, employers must continue to evaluate the employee’s work duties and environment to decide whether or not one or more events or exposures in the work environment either caused or contributed to the resulting condition, or significantly aggravated a pre-existing condition.

Even in those industries where work-related transmission is more likely, employers should understand that recording or reporting a work-related injury, illness, or fatality does not mean the employer or employee was at fault, or that an OSHA rule has been violated, or that the employee is eligible for workers’ compensation or other benefits. Reporting or recording workplace illnesses like COVID-19 will not result in an automatic imposition of liability, but employers’ failure to report known or suspected work-related COVID-19 diagnoses may have significant regulatory consequences.

Notwithstanding the above federal guidance, California employers have to be careful to ensure that they are also complying with California standards.  See for example, Cal-EDD,  State of California DIR, Cal-DFEH, and Cal-OSHA (for agricultural employers).

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We will continue to monitor this rapidly developing situation and provide updates as appropriate.  Should you have any questions with any of this, please feel free to reach out to us.