Pandemic Employment Law & Labor Standards In The New Age Of Covid-19

Article Summary

  1. Pandemic employment laws state, if an employee at work exhibits symptoms of COVID-19 or the flu, you can ask the employee to leave work or stay home (per the Equal Opportunity Commission (EEOC).
  2. Very high exposure risk jobs are those with high potential for exposure to known or suspected sources of COVID-19 during specific medical, postmortem, or laboratory procedures.
  3. Workers in this category include: High exposure risk jobs are those with high potential for exposure to known or suspected sources of COVID-19.
  4. If you have a non-healthcare business and suspect or have confirmation of an individual that contracted COVID-19, the Centers for Disease Control and Prevention  (CDC) recommends the following approach: If you are planning to hire additional workers during the pandemic, the EEOC has confirmed that you may screen applicants for symptoms of the coronavirus after you have made a conditional job offer, as long as you do so for all new employees in the same type of job.
  5. Employers can help reduce the chance of harassment by explicitly communicating to the workforce that fear of the COVID-19 outbreak should not be used as an excuse to discriminate against their fellow employees based on race, national origin, color, sex, religion, age, disability or genetic information.

As businesses open up overtime once again from the COVID-19 shutdown, it will take time to adjust to new regulations and pandemic employment laws that have been put in place to protect workers and employers. In this article, I will give an overview of what employers should be aware of as we attempt to open our businesses back up.

Please know that employers should be prepared for some types of government-mandated restrictions and enforcement guidance to continue for a while. These requirements may change at any moment, so it's wise to implement a plan to monitor the situation regularly to know current pandemic employment laws.

The Occupational Safety and Health Administration (OSHA) published Guidance on Preparing Workplaces for COVID-19 to help employers with steps they can take to help protect their workforce.  To help employers determine appropriate precautions, OSHA has divided workplaces into four risk zones: very high, high, medium and lower risk.

Very High Exposure Risk:

Very high exposure risk jobs are those with high potential for exposure to known or suspected sources of COVID-19 during specific medical, postmortem, or laboratory procedures. Workers in this category include:

  • Health care workers and health care professionals performing aerosol-generating procedures (e.g. intubation, cough induction procedures, invasive specimen collection) on known or suspected COVID-19 patients.
  • Healthcare or laboratory personnel collecting or handling specimens from known or suspected COVID-19 patients.
  • Morgue workers performing autopsies on the bodies of people who are known to have, or suspected of having, COVID-19 at the time of their death.

High Exposure Risk:

High exposure risk jobs are those with high potential for exposure to known or suspected sources of COVID-19. Workers in this category include:

  • Healthcare delivery and support staff exposed to known or suspected  COVID-19 patients.
  • Medical transport workers moving known or suspected COVID-19 patients in enclosed vehicles.
  • Mortuary workers involved in preparing the bodies of people who are known to have, or suspected of having, COVID-19 at the time of their death.

Medium Exposure Risk:

Medium exposure risk jobs include that have a high frequency and or close contact with the general population.

Lower Exposure Risk:

Lower exposure risk jobs are those who have minimal occupational contact with the general public and other co-workers.

If any employee shows signs of a fever or difficulty in breathing, they should seek medical evaluation. While the likelihood of that individual having COVID-19 is low, it's always best to err on the side of caution. One should always discuss the importance of not overreacting with managers and supervisors to a potential COVID-19 case in order to not create a panic in the workplace. The Equal Employment Opportunity Commission (EEOC) has dedicated a page to COVID-19 and employment issues related to the virus.

During a pandemic, if an employee at work exhibits symptoms of COVID-19 or the flu, you can ask the employee to leave work or stay home (per the Equal Opportunity Commission (EEOC). The EEOC also confirmed that you may take an employee's temperature at work to determine whether they may be infected with the illness to maintain workplace safety. Please note, however, that an employee may be infected with COVID-19 without exhibiting symptoms like a fever. In these cases, temperature checks would not be effective. If an employee does test positive for COVID-19, they should be sent home until released by their health provider.

If you have a non-healthcare business and suspect or have confirmation of an individual that contracted COVID-19, the Centers for Disease Control and Prevention  (CDC) recommends the following approach:

  • Close off the work area used by the ill person(s) and wait as long as practical to clean and disinfect the area to minimize the potential for exposure and transmission of respiratory droplets, preferably at least 24 hours. Open outside doors and windows to increase air circulation in the location and area of concern.
  • The cleaning crew should disinfect all areas used by the ill person, paying close attention to frequently touched surfaces. Areas may include offices, bathrooms, common areas, etc.

If you are planning to hire additional workers during the pandemic, the EEOC has confirmed that you may screen applicants for symptoms of the coronavirus after you have made a conditional job offer, as long as you do so for all new employees in the same type of job. Furthermore, you may delay the start date of an applicant who has COVID-19 or symptoms associated with it. The EEOC has also stated that it is permissible to withdraw a job offer when you need an applicant to start immediately but the person has COVID-19 or symptoms of it.

In the unlikely event of an employee that has flu-like symptoms but refuses to leave the workplace, a diplomatic approach should be tried first. Explain to them that you must lookout for the health and wellbeing of the entire workplace. If the individual has paid sick leave or accrued vacation time, explain to them how these may be used.

Employers can help reduce the chance of harassment by explicitly communicating to the workforce that fear of the COVID-19 pandemic should not be used as an excuse to discriminate against their fellow employees based on race, national origin, color, sex, religion, age, disability or genetic information. Supervisors should stop any harassment or discrimination immediately, review the allegations and take appropriate action.

As an employer, you must take the necessary steps to keep the employee's medical information safe and private. The Americans with Disabilities Act (ADA) requires that an employee's medical record and information be kept confidential and stored separately from their personnel files. State law may also impose requirements with respect to collection, use, retention and/or disclosure of health-related information.

The pandemic continues to push employers and employees into unchartered waters and new regulations can be expected at any time.  Please contact me with any questions that are specific to your workplace or pandemic employment laws.  My number one priority is to help you understand your complex legal challenges and present solutions that guide you and your business to success.

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