COVID-19 Employment Law Update: Workplace Safety and Employee Rights

COVID-19 Employment Law Update: Workplace Safety and Employee Rights
The recent characterization of COVID-19 as a pandemic by The Centers for Disease Control (“CDC”) has put employers on high alert. During this unsettling time, it is critical that employers comply with State and Federal laws and regulations, protect employee rights, and safeguard employees from COVID-19-related harms.  Here, we explore the CDC’s recent guidance, which can be found here, and set forth key takeaways pertaining to promoting a healthy and safe workplace and ensuring employees are not discriminated against for reasons related to COVID-19.  Our previous client alert, which outlines Governor Murphy’s Executive Order No. 107, and employer obligations resulting from that Order, can be found here
 
Workplace Health and Safety: The CDC’s Interim Guidance for Businesses and Employers
 
In order to prevent stigma and discrimination in the workplace, employers must avoid making determinations of COVID-19 risk based on race or country of origin. Employers must maintain the confidentiality of persons with confirmed coronavirus infection and avoid disclosing the identities of employees who test positive for COVID-19. In the event that employees report to work and appear to show symptoms of the virus, they should be immediately separated from other employees, customers, and visitors, such as third-party vendors or delivery personnel, and sent home. If an employee tests positive for COVID-19, employers should inform other employees of their possible exposure to the virus while maintaining confidentiality as required by the ADA.
 
Businesses and employers must do all possible to prepare workplaces for a COVID-19 outbreak, and prevent and mitigate the spread of COVID-19. This includes developing a responsive plan and coordinating with State and local health officials in order to obtain accurate and timely information pertaining to COVID-19.  Approaches will necessarily vary depending on the level of transmission and impact of COVID-19 in the communities in which businesses and employers are based. 
 
Employers must strive to reduce the transmission of COVID-19 among employees, maintain healthy business operations, and maintain a health work environment. In order to prevent and/or reduce transmission of the virus among employees, employers should actively encourage employees to stay home. Employees who have symptoms of COVID-19—namely, cough, shortness of breath, and/or fever—should notify their supervisors and stay at home.  Sick employees should follow CDC-recommended steps and should not be permitted to return to work until the criteria to discontinue home isolation are met, in consultation with healthcare providers and State and local health departments.  Businesses and employers should identify where and how workers might be exposed to COVID-19 in the workplace, and look to the Occupational Safety and Health Administration’s (“OSHA”) recent guidance in order to learn more about how to lessen employees’ exposure to risk.  
 
The CDC guidance urges employers to educate employees about the risk of the spread of COVID-19 and to maintain healthy business operations by identifying a workplace coordinator who will be responsible for COVID-19 issues and their impact on the workplace, as well as implementing flexible sick leave and supportive policies and practices. If employees must be in the workplace, employers should ensure that proper social distancing measures are implemented and followed. This may include implementing work-from-home policies that allow employees to telework (which is, in many cases, required pursuant to Governor Murphy’s Executive Order No. 107), implementing flexible work hours (e.g. staggered shifts), increasing physical space between employees at worksites, implementing flexible meeting and travel options, and delivering products through curbside pick-up or delivery. 
 
Employers are also encouraged to increase building ventilation rates by increasing the percentage of outdoor air that circulates into the system, and to promote employee hygiene by providing tissues, no-touch disposal receptions, and ensuring that soap and hand sanitizer are readily available.  Of course, workplaces should be routinely cleaned and employees should be discouraged from using other employees’ desks, phones, offices, or other work tools and equipment to the extent possible.
 
OSHA recently issued Guidance on Preparing Workplaces for COVID-19, which is more comprehensive and can be accessed here.  It is highly recommended that all employers read this guidance and reach out to our office should they have any questions.  
 
COVID-19 and Employee Rights
 
It is critical that, even amid the risks and fears arising from COVID-19, employers adhere to all applicable anti-discrimination laws and promote work environments in which all employees are free of harassment and discrimination.
 
ADA-covered employers may not terminate or take adverse action against an employee because that employee has been diagnosed with COVID-19; however, employers may take certain actions to avoid the spread of COVID-19 in the workplace. Presently, the EEOC has characterized COVID-19 as a “direct threat” to the workplace, and has authorized employers to take the following actions as to their employees:  
 
  • Withdraw a job offer from a job applicant if he or she has COVID-19 or symptoms of the virus;
  • Delay an incoming employee’s start date if that employee has either been diagnosed with COVID-19 or presents with symptoms of the virus;
  • Screen incoming employees for COVID-19 during the onboarding process so long as all incoming employees are screened;
  • Ask employees why they are absent from work if a medical reason is suspected;
  • Encourage employees to work from home/telework;
  • Require sick employees to stay at home;
  • Take employees’ temperatures (although persons infected with COVID-19 do not always present with a fever);
  • Require employees to adopt hygienic practices to thwart the spread of infection, such as regular hand washing and sanitation of work spaces; and
  • Ask employees if they are experiencing flu-like symptoms like a cough, fever, chills, or sore throat, so long as this information is maintained like confidential medical records in compliance with the ADA. 
 
Recent EEOC guidance regarding what employers should know about the ADA and COVID-19 can be accessed here.
 
In addition to the ADA, New Jersey employers must ensure their compliance with the LAD. On March 19, 2020, New Jersey Attorney General Gurbir S. Grewal issued guidance to employers and businesses regarding the LAD in the context of responding to COVID-19-related concerns, which can be read here.  AG Grewal noted that all employers must take affirmative steps to make sure their workplaces are free of discrimination and harassment, and advised employers that they must not discriminate against employees based on age, race, disability, national origin, or any other protected category under the LAD in connection with COVID-19 stereotypes.   Employers must take reasonable action to stop harassment of one employee by another employee if the employer knows or should have known about it, i.e. if one employee has east-Asian heritage and a coworker implies that Asian people caused COVID-19 or refers to COVID-19 as the “Chinese Virus.”  
 
AG Grewal also emphasized that employers must not take any adverse employment action—i.e. termination or demotion of any employee—based upon their membership in a protected category and associated concerns related to COVID-19. For example, employers cannot terminate employees simply because they cough at work and are perceived to have a disability related to COVID-19.
 
“COVID-19 is no excuse for racism, xenophobia, or hate,” said AG Grewal. “Discrimination and harassment in violation of New Jersey law remains illegal even if it occurs against the backdrop of a global pandemic. Now, more than ever, we should recognize that we’re all in this together. Words and actions that divide us won’t make any of us safer or stronger.”
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