The Occupational Safety and Health Act (“OSHA”) assures safe and healthful working conditions for working men and women. This includes an employer’s obligation to shield its workers from situations likely to cause serious physical harm or death. Making haste business decisions may potentially expose employers to discrimination and disability claims, as well as wage and hour claims. We are getting into the murky waters of PTO and workers’ compensation if an employee contracts Covid-19 in the course of their employment. The pandemic implicates a range of employment laws, including the ADA, FLSA, OSHA, Title VII, and ERISA.

As our country continues to face COVID-19, employers will be hard-pressed to face operational challenges with legal implications in the areas of worker health, safety, privacy issues and equal employment. The list is expansive when it comes to operational protection as a whole and for workers. Below is a list offering a starting point for what employers should do in dealing with Covid-19. It takes into account increased rates of worker absenteeism, the need for social distancing, staggered work shifts, remote delivery, cross-training to ensure continued operations and un-interrupted supply chains. Please note this is not all-encompassing.

• Establish practices on flexible worksites (e.g. telecommuting) and flexible work hours (e.g. staggered work shifts) to increase physical distance between employees, and others. This also conforms with Federal Mandate to congregate in groups of 10 or less. Discourage workers from using other workers’ phones, desks, offices or other work tools and equipment when possible.
• Do not require workers to undergo medical testing. The CDC is instructing healthcare providers to be selective in how testing is administered. Screening all employees’ temperatures as they enter the workplace is likely to create more panic than benefit. Such screening may violate the Americans with Disabilities Act (ADA), as does requiring employees undergo a medical test to confirm a COVID-19 diagnosis. Do not require a healthcare provider’s note for employees who are sick with acute respiratory illness to validate their illness or return to work.
• Eliminate all non-essential travel. Regularly check CDC travel warning levels at: www.cdc.gov/coronavirus/2019-ncov/travelers. Many meetings can be held via Skype, Zoom and Go2Meeting.
• If a worker has recently traveled to a COVID-19 “hotspot,” instruct the worker to self-quarantine for the 14-day period. Dependent on worker responsibility and employer need, individualized decisions can be made on teleworking. Do not treat employees differently. This implicates several discrimination protections. For example, do not limit your requests for employees to stay home or self-quarantine to older or pregnant employees or to employees of specific races or national origin.
• Designate a human resources representative to handle all individualized COVID-19 worker concerns. Designate a point person to field all other COVID-19 questions. Ensure you have a way to reach all employees if they lose access to work email, regardless of where they are located. A simple cellphone list is a good starting point.
• If a worker tests positive for COVID-19, require the worker to self-quarantine at home. Whether you should pay sick or quarantined employees (who are not working remotely) depends on their exempt or nonexempt status; previous use of sick leave; union contracts; and your policies and benefit plans. You can bend the “normal” rules to show concern about employee health. For example, forcing employees to stay home for two weeks without pay or to use precious PTO could incentivize hiding symptoms or travel, which defeats the goal of preventing spread in the workplace.
• Worker privacy is paramount. Do not ask “Do you have COVID-19?” This is a potential violation of the ADA. It is not clear if COVID-19 qualifies as a “disability,” employers generally need to know whether employees are fit to work and what limitations, if any, they have—not a specific diagnosis.) Generally, you can ask, “do you have any of the specific symptoms (listed on the CDC website)”?
• If you learn that an employee has been diagnosed with COVID-19, and you have not been contacted by local health authorities, contact the health agency to seek guidance on employee communication or other steps the agency wants you to take.
• Establish a plan now. The plan should include how to operate considering worker absenteeism, mandated closures, alternative suppliers and prioritizing customers and functions.