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US COVID-19: Risky Business – Navigating Workplace Issues Involving High Risk Employees

As states across the country see spikes in COVID-19 cases, employers continue to wrestle with how to handle “high risk” employees, i.e., employees who are at an increased risk for severe illness from COVID-19.  Guidance from a variety of agencies on the topic, including the Equal Employment Opportunity Commission (“EEOC”), the Centers for Disease Control and Prevention (“CDC”), and the Occupational Safety and Health Administration (“OSHA”), has been published in waves, leaving many to wonder how this guidance may or may not continue to be relevant.

Below are six important areas of the law to consider when navigating this evolving landscape.  As a reminder, each individual employee’s circumstances are unique, so while employers should have a consistent procedure in place for triaging high risk employees’ presence in the workplace, employers should also be prepared to develop individualized solutions based on an employee’s specific needs.

  • The Americans with Disabilities Act (“ADA”): Employees with certain underlying health conditions may qualify as “high risk” and thus be entitled to a reasonable accommodation under the ADA.  While accommodations may include a leave of absence or telework arrangement, other possible accommodations include permitting the employee more frequent hygiene breaks, excusing the employee from attending group meetings/gatherings, and reconfiguring the employee’s workspace.  It is important that employers not act unilaterally with respect to implementing accommodations.  Instead, the interactive dialogue process should be used early on to identify what, if any, accommodations an employee may need and/or receive.  As a reminder, employers’
  • U.S. COVID-19: OSHA & Your Reopening Plans: A Step-By-Step Guide for Employers

    As state and local governments begin to ease restrictions on businesses and increasingly look to “reopen” economic activity, employers are evaluating how to safely return employees to the workplace. This preparation must include not only understanding the parameters of state and local orders (which often include basic social distancing measures, such as staying 6 feet apart, or requiring employees to wear face coverings), but also considering obligations under standards set by the federal Occupational Safety and Health Administration (“OSHA”).

    Below is a guide for employers to consider as they evaluate safe return-to-work strategies during the ongoing COVID-19 pandemic. Please consult BCLP’s additional guidance for a broader discussion of other considerations when developing a “reopening plan.”

    Step 1: Review state and local orders to determine whether a business or workplace is permitted to reopen.

    As an initial step, an employer must determine whether, when and to what extent it can open and maintain in-person operations. State and local orders vary in their definitions of “essential businesses” permitted to operate. For example, Georgia’s recent “reopening” orders only grant a small subset of businesses permission to reopen. BCLP is tracking the current status of state and local shelter-in-place orders nationwide, which are changing regularly.

    Step 2: Review OSHA’s COVID-19 Guidance to understand and implement broadly applicable recommendations for reducing employees’ risk of exposure to COVID-19.

    An employer should next carefully consider what  steps it must take to comply with the federal Occupational Safety and Health Act (the

    U.S. COVID-19: Mask and Facial Covering Orders—Four Things Employers Need to Know and Do to Comply with New Obligations

    Across the country, state and local governments are considering safe ways to “reopen” their economies and revise some of their strict shelter-in-place orders. One such consideration includes masks and “face coverings,” with many implementing a requirement that members of the public, including employees reporting to work, wear such coverings.  Below are four things that employers should do now to be prepared to comply with mask and face covering requirements as they “reopen” their businesses.

  • Continue to Monitor Public Health Guidance
  • Public health authorities at the federal, state, and local levels are likely to continue revising their recommendations on face coverings as they learn more about COVID-19. For example, last month, the federal Centers for Disease Control and Prevention (“CDC”) issued guidance recommending that individuals wear “cloth face coverings”[1] in public settings where other social distancing measures are difficult to maintain (e.g., grocery stores and pharmacies), especially in areas of significant community-based transmission. The CDC makes clear that the purpose of such coverings is primarily to “help people who may have the virus and do not know it from transmitting it to others.” In other words, a face covering primarily protects others from an asymptomatic wearer.

    Although the CDC’s guidance is only a recommendation – and thus not binding – a variety of local and federal agencies rely on the CDC’s guidance generally to identify “best practices” for employers, including the Equal Employment Opportunity Commission (“EEOC”) and the Occupational Safety and Health Administration (“OSHA”). State and local

    To Record or Not To Record, That is the Question: Questions and Answers Regarding U.S. Federal OSHA Recordkeeping and Reporting Requirements During the COVID-19 Crisis

    April 29, 2020

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    QUESTION: If an employee informs you that they are experiencing flu-like symptoms and complains that they have become ill from a workplace exposure to the COVID-19 virus, are you, as the employer, required by OSHA to record the illness on your OSHA 300 Log?

     

    QUESTION: If an employee reports to you, as their employer, that they have tested positive for the COVID-19 virus, are you required by federal OSHA regulations to record that illness on your OSHA 300 Log?

     

    QUESTION: If an employee in the healthcare, emergency response, or correctional institution industries reports to you, as their employer, that they tested positive for the COVID-19 virus, are you required by federal OSHA regulations to record that illness on your OSHA 300 Log?

     

    Read this informative article written by our BCLP colleagues for answers to these and many other important questions for employers during COVID-19.

     

    We will continue to monitor and provide insight regarding any developments in OSHA guidelines, as well as other federal and state government regulations, throughout the COVID-19 crisis and update you accordingly. We also invite you to review BCLP’s other COVID-19 resources, many of which are aimed directly at answering additional questions and concerns for businesses and employers operating during the COVID-19 crisis. If you have any questions related the above OSHA guidelines or any other concerns for your business’ operations during the COVID-19 crisis, please contact a member of the Employment and Labor team or your BCLP relationship attorney.

    Preparing to Return U.S. Employees to the Workplace

    As we approach the one month anniversary of the first “stay-at-home” orders, many are asking when we can get back to work and what will it look like when we do?  In response, companies are beginning to consider the logistics of returning employees to the workplace.  Just as the “stay-at-home” orders vary widely from state to state, any regulatory return to work orders issued by the states, or any guidance issued by any federal agencies, will likely vary widely as well. Employers with multiple locations may again find themselves juggling different requirements in different facilities, with no single approach fitting an entire multi-location business.

    Though “stay-at-home” states have not yet issued guidance on how or when they will allow non-essential businesses to begin operating again, such a return could commence at any time.  In order to assist companies with preparing in the absence of regulatory guidance, we have developed the following suggestions for employers’ consideration as they plan to return employees to the workplace and seek to be positioned to do so, when permissible, as efficiently and quickly as possible:

    • Be prepared to comply with the CDC’s Guidelines in effect at the time of a return to work. For current example, employers should ensure they have sufficient handwashing stations and supplies, tissue disposal options and appropriate postings regarding sanitation and hygiene.
    • Consider improved infection control/sanitization practices for high-touch areas such as equipment, machinery, restrooms and breakrooms, and sanitization materials for workers and visitors.
    • It is likely that in every

    U.S. COVID-19: Workplace Temperature Screening: How To Develop and Implement A Screening Protocol

    The notion that U.S. employers would engage in broad-scale temperature screening of employees would have once been essentially unthinkable.  But the realities of COVID-19 are changing the workplace, as least for the time-being.  With the encouragement of the Centers for Disease Control and Prevention (“CDC”) and some state and local governments, and in light of the blessing of the Equal Employment Opportunity Commission (“EEOC”), more employers are now considering the implementation of daily temperature screening[1] before employees enter the workplace.

    In Part 1 of our two-part series on temperature screening, we addressed the question of whether employers may (or must) implement a temperature screening protocol.  Here, in Part 2, we address the question of how to implement such a protocol, i.e. what procedures for temperature screening in the workplace should employers implement? Below are a number of issues for employers to consider:

  • Decide who will be screened. Some employers are screening only critical infrastructure workers who were or may have been exposed to a person suspected or confirmed to have COVID-19.  Other employers are screening all employees, and often are also screening any contract workers and visitors who enter the workplace, unless doing so would be virtually impossible (e.g., a grocery store screening all customers).  Although deciding who will be screened is essentially a business decision, at all times, employers must ensure that employees are selected for screening on a nondiscriminatory basis.
  • Decide who will do the screening. The options for who will do the screening range
  • Where There’s Smoke, There’s Danger: CAL/OSHA Urges Protection of Workers From Wildfire Smoke

    California is currently experiencing record-breaking heat waves and an increased number of active wildfire incidents.  California OSHA (CAL OSHA) has determined that this poses a serious threat to the safety of outdoor workers because smoke from wildfires often contains chemicals, gases, and fine particles that are dangerous to human health.  Inhaling such particles is particularly dangerous, says CAL OSHA, because it can reduce lung function, worsen asthma and other existing heart and lung conditions, and cause coughing, wheezing, and difficulty breathing.

    In response to these concerns, CAL/OSHA recently issued an advisory notice that urges employers with employees  exposed to wildfire smoke to take extra precautions as part of their Injury and Illness Prevention Program under Title 8 section 3203 of the California Code of Regulations and as required under section 5141 (Control of Harmful Exposure to Employees).  Those precautions include:

    • Utilizing engineering controls whenever feasible (for example, using a filtered ventilation system in indoor work areas).
    • Using administrative controls if practicable (for example, limiting the time that employees work outdoors).
    • Providing workers with respiratory protective equipment (such as disposable filtering face-pieces, like dust masks) in conformance with respiratory protection requirements, as applicable. Some relevant respirator comments made by CAL OSHA in recent guidance include:
      • Respirators must be labeled N-95, N-99, N-100, R-95, P-95, P-99, or P-100, and must be labeled approved by the U.S. National Institute for Occupational Health and Safety (NIOSH).
      • Approved respiratory protective equipment is necessary for employees working in outdoor locations designated by

    OSHA Indefinitely Postpones Electronic Submission of Injury and Illness Records

    May 26, 2017

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    We’d like to share with our readers a recent Client Alert from the Bryan Cave OSHA Industry Team providing notice to clients that an upcoming July 1, 2017 deadline for submission of injury and illness logs to OSHA has been delayed by the Trump Administration.  The alert also contains some additional commentary on related injury/illness recordkeeping requirements.

    https://www.bryancave.com/en/thought-leadership/osha-indefinitely-postpones-electronic-submission-of-injury-and.html

    Bryan Cave LLP has a team of knowledgeable lawyers and other professionals prepared to help employers assess their obligations. If you or your organization would like more information on this alert or how the new regulations affect your business, please contact an attorney in the Labor and Employment practice group.

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