As businesses reopen under COVID-19, it is imperative employers develop a plan that takes into account physical and behavioral modifications to the workplace, employee health screening protocols, workers’ compensation claims, employee accommodations and other considerations. There is no “one-size-fits-all” approach and employers must tailor their plans to evolving federal, state and local requirements as well as the nature of their specific business.
Physical and Behavioral Modifications
The Occupational Safety and Health Administration (“OSHA”) mandates employers to provide workplaces “free from recognized hazards that are causing or likely to cause death or serious harm,” including occupational exposure to COVID-19. Therefore, when reopening employers must implement changes to the physical layout and behavioral/hygiene protocols aimed at preventing the spread of the virus.
Behavioral modifications aimed at minimizing social contact include remote working if feasible; staggered shifts; virtual meetings; and the wearing of masks, gloves, and/or other personal protective equipment (“PPE”) both inside the office location as well as in the field.
Employers with employees who work solely inside of an office need to consider what physical changes should be made to interior areas where employees tend to congregate. These measures may include making points of entry one way to avoid face-to-face contact; replacing standard door handles and fixtures with touchless technology to facilitate hands-free operation; installing high-efficiency air filters to increase circulation; erecting plexiglass or other barriers to block airborne particles where face-to-face contact is unavoidable, and rearranging workspaces to ensure maximum social distancing.
Employee Health Screening
While the Americans with Disabilities Act (“ADA”) prohibits employers from making disability related inquiries or mandating medical examinations unless “job related and consistent with business necessity,” the EEOC has determined that during a pandemic, employers may take the following measures to ensure workplace safety:
- Ask employees if they are experiencing symptoms of the virus;
- Take employees’ temperature or require employees to take and report their temperature;
- Ask employees if they had close contact with anyone diagnosed with COVID-19 or exhibiting symptoms;
- Administer COVID-19 testing in accordance with FDA guidelines;
- Exclude employees exhibiting symptoms from the workplace and permit them to return only after being in isolation for 10 days since the onset of symptoms and 24 hours after fever resolves (without the use of fever-reducing medications) and other improvement in the employee’s symptoms; and
- Require employees who were in close contact with someone with COVID-19 to remain at home for 14 days symptom free.
Business implementing screening must ensure that employees performing testing are properly trained on use and sanitization of testing devices, and non-exempt employees must be paid for time spent undergoing screening. The physical location of testing and privacy concerns must also be addressed.
Workers Compensation
To establish a compensable COVID-19 claim under New Jersey’s Workers’ Compensation Act, the employee must show that he/she contracted the virus directly from the workplace. The difficulty in establishing where an individual contracted a communicable disease explains the scarcity of compensable, seasonal influenza workplace claims. However, on September 14, 2020, Governor Murphy signed a new law, retroactive to March 9th, removing this requirement for essential workers by creating a presumption that these employees’ contraction of the COVID-19 virus is work-related. The presumption can only be refuted by a preponderance of the evidence showing the essential worker was not exposed at their workplace.
Reasonable Accommodations and Other Considerations
Generally, employees refusing to return to duty for fear of contracting the virus are not protected and may be subject to termination. However, employees with medical conditions placing them at high-risk should they contract COVID-19, and who present a stay-at home recommendation from a physician, may be eligible for a leave of absence as a form of reasonable accommodation for a disability required under the ADA. Moreover, high-risk employees who chose to return to the workplace may not be excluded by the employer unless reasonable accommodations designed to protect the employee cannot remove the “direct threat” of exposure. Employers must familiarize themselves with how to recognize and address requests for COVID-19-related accommodations under the ADA.
The workplace has been significantly, and perhaps permanently, changed under COVID-19. Given the numerous legal issues discussed above, employers should consult with employment law counsel to develop a compliant plan.