Regardless of when your office reopens, planning for it needs to start now. Employers are both ethically and legally obligated to maintain safe and healthy work environments for their employees. To protect workers, companies must comply with certain legal requirements, including the Occupational Safety and Health Act (OSH Act), Americans with Disabilities Act (ADA), and the Family and Medical Leave Act (FMLA), just to name a few. Here, we share insight on common COVID-19 compliance-related considerations for employers to keep in mind when reopening their workplaces:
State and federal OSHA agencies have seen an influx of complaints about dangerous working conditions amid the coronavirus pandemic. Reported complaints range from workplaces lacking personal protective equipment to businesses not adhering to state and federal social distancing guidelines. In Tennessee, workplace complaints submitted to the state since March 1 are more than double the number of complaints filed during the same time period last year.
Although federal OSHA guidelines don’t require responses to every individual COVID-19 complaint, employers should take every precaution to stay in compliance with OSHA regulations nonetheless. Employers should develop and document a COVID-19 exposure control and response plan that includes detailed descriptions of the measures they are taking to reduce the coronavirus spread in the workplace. This plan may include changes to personal protective equipment, sanitation policies, physical work environments, workplace separation, travel restrictions, and remote work policies.
OSHA also requires that employers record confirmed cases of COVID-19 if a worker contracted the virus while on the job. In a recent OSHA enforcement guidance memo, however, the federal agency stated that until further notice, it will use its discretion in enforcing record-keeping requirements among employers outside of the healthcare, emergency response organizations, and correctional institutions.
FFCRA and FMLA
Under the new Families First Coronavirus Response Act (FFCRA), public employers and private employers with fewer than 500 employees are required to provide emergency paid sick leave and expanded family and medical leave to employees affected by COVID-19. Specifics about which employers under which circumstances qualify for paid sick leave and expanded paid family and medical leave can be found in our FFCRA blog.
While businesses that sustained operations throughout the pandemic may be well-aware of the new rules, employers that are returning to work after furloughing workers will need to keep these new rules top of mind when they rehire their employees.
The United States Department of Labor (USDOL) has published a useful set of frequently asked questions advising employers.
You can also find additional resources on COVID-19 scenarios and benefits here.
At present, there is a great deal of confusion about Health Insurance Portability and Accountability Act (HIPAA) compliance and the COVID-19 pandemic – specifically, on how the HIPAA Privacy Rule and Security Rule applies. The key is to strike the right balance between maintaining HIPAA compliance and keeping the health and safety of employees at the forefront.
“It’s a balance between others’ right to know of a serious illness during this pandemic and the right of privacy of an employee,” says Gordon Berger, a law partner with FisherBroyles LLP, which advises XMI on labor and employment issues. “Employers can tell employees that one of their (unidentified) co-workers was either exposed to COVID-19 or contracted it. Then, the employer should send any workers home that came in contact with the exposed co-worker, including getting them tested.”
COVID-19 does not alter or waive HIPAA privacy rules or employer obligations. Along with the requirement to report under OSHA, an employer can report exposure or an employee who has COVID-19 to:
- A public health authority, such as the CDC or a state or local health department.
- The direction of a public health authority.
- Persons at risk of contracting or spreading a disease.
The pandemic has eroded some of the privacy offered through HIPAA for the sake of public health and safety. For example, daily temperature checks in the workplace are permitted; however, any log of results must remain confidential.
“Under a pandemic, employers can ask specifically about COVID — symptoms, signs, some of the return-to-work safety protocols,” says Michelle Thompson, vice president of human resources for XMI. “What they cannot ask about is other health conditions not relating to COVID.”
There are a number of ADA compliance considerations for employers to keep in mind in their return to work policies amid the pandemic. Practices to consider include avoiding discriminatory practices in rehiring and daily temperature checks.
Key points to remember include:
- Employers must use objective, measurable criteria when making rehiring decisions. They cannot postpone a start date or withdraw a job offer because an applicant is in a higher risk category, such as people 65 or older or pregnant women.
- Antibody testing and daily temperature checks and screening are permitted in compliance with ADA rules because the coronavirus is a “direct threat.” However, the same rules must apply to everyone.
- Employers should cater to reasonable accommodation requests for those who are physically or mentally disabled. Employees who received reasonable accommodation before COVID-19 may be entitled to additional or altered accommodations when returning to work.
Compliance regulations can be overwhelming enough already, but with so many new and modified regulations in the mix due to the coronavirus pandemic, it can be easy for things to fall through the cracks. If reopening your business amid these new regulations seems daunting, give us a call, and we will be glad to help walk you through it.
Return to Work Checklist for Employers
Reopening your office? This comprehensive action plan template can help you time your reopening, make critical workplace modifications, and ensure you’re implementing proper health and safety protocols in the workplace.