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FAQ: Employee safety during coronavirus

The 2019 novel coronavirus (COVID-19) pandemic has workplace safety at the forefront of employers’ minds. The following are answers to questions on employee safety.

When implementing this guidance, remember that first and foremost, it is critical to train supervisors and managers not to panic should an employee appear with symptoms.

Is there workplace safety guidance we should follow related to COVID-19?

Yes, the Occupational Safety and Health Administration (OSHA) recently published guidance related specifically to COVID-19. The guidance outlines steps employers can take to help protect their workforce based on a 4 tier level of risk exposure. The risk zones are helpful in determining appropriate work practices and precautions.

Can you ask an employee to stay home or leave work if they exhibit COVID-19 symptoms or the flu?

Yes, employers are permitted to require employees to seek medical attention and get tested for COVID-19 under these circumstances. The U.S. Centers for Disease Control and Prevention (CDC) states that employees who exhibit symptoms of influenza-like illness at work during a pandemic should be required to leave the workplace. The Equal Employment Opportunity Commission (EEOC) guidance distributed during the H1N1 pandemic says that advising workers to go home is not disability-related if the symptoms are akin to the seasonal influenza or virus and the EEOC is directing employers to this same guidance with the COVID-19 pandemic.

Can you ask an employee specific questions related to their health to determine if the employee is suffering from a typical illness and not COVID-19?

It depends. There is no easy way for employers to make this determination, but following the basic logic laid out by the EEOC helps. Always remember to be thoughtful and cautious when inquiring about an employee’s illness. The indicators that will lead you to conclude an illness could be COVID-19, include the employee’s travel to a red zone or an area otherwise subject to federal travel restrictions or exposure to someone who traveled to one of these areas.

The EEOC’s pandemic guidance acknowledges that if the virus’ spread becomes severe, inquiries into an employee’s symptoms, even if disability-related, are considered justified as a reasonable belief. This reasonable belief is based on objective evidence that the severe form of pandemic influenza poses a direct threat. Remember, employers must maintain all information about an employee’s illness as a confidential medical record in compliance with the Americans with Disabilities Act (ADA).

If an employee self-reports a positive COVID-19 test or is suspected, but not yet confirmed to have COVID-19, what can employers tell coworkers?

As with any other medical-related employee information, maintaining the confidentiality of the employee’s health information is critical. This includes keeping the identity of the employee confidential. The CDC guidance for employers, however, outlines inquiries that should be undertaken with employees. Once an employee is suspected, or confirmed, to have COVID-19, employers should ask the employee who they came into close proximity contact with while at work in the previous 14-day period. Close proximity contact is considered three to six feet. The coworkers identified should be advised that they may have been exposed to COVID-19 and advised to self-monitor for symptoms.

Can an employee refuse to come to work based on a fear of infection?

Under the OSHA regulations, employees are only entitled to refuse work if they believe they are in “imminent danger.” Section 13(a) of OSHA defines “imminent danger” to include “any conditions or practices in any place of employment which are such that a danger exists which can reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act.” The threat must be immediate or imminent, which means that an employee must believe that death or serious physical harm could occur within a short time. For example, continuing to require business travel to China may rise to this threshold, but most work conditions in the U.S. do not. That being said, these are unique times and you should continue to examine all facts and circumstances on a case-by-case basis when answering this question.

If an employee notifies you that they tested positive for COVID-19, are you, as the employer, required to report it to the CDC?

No. Healthcare providers who have patients that test positive for COVID-19 are required report the test results to the CDC.

Copyright © 2020 Godfrey & Kahn S.C.National Law Review, Volume X, Number 77

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About this Author

Scott LeBlanc, Labor & Employment Attorney with Godfrey Kahn
Member

Scott LeBlanc is an associate in the firm's Labor, Employment & Immigration and Health Care Practice Groups. Scott represents a wide range of employers, including health systems, hospitals, physician groups, and other health care related organizations, with respect to employment law and health care regulatory issues.

Scott assists employers of all types during the hiring process, through employment terminations, and at all points in-between. In addition to advising clients on day-to-day employment issues such as...

414-287-9614
Christine McLaughlin, Labor Attorney, Godfrey Kahn Law Firm
Shareholder

Christine Liu McLaughlin is a shareholder and chair of the Labor & Employment Law Practice Group in the Milwaukee office. Christine also is the immediate-past chair of the firm's Women's Leadership Forum and chair of the Diversity Committee.

Christine provides counsel on a wide variety of employment and labor issues ranging from interpretation and application of federal and state employment laws to specialized employee transition matters in complex business transactions.

Christine advises her clients on general employee hiring, discipline and termination issues; family and medical leave issues; federal and state disability discrimination issues; federal and state civil rights and fair employment issues; sexual and other unlawful harassment issues; workplace violence issues; and contingent workforce issues. Christine routinely defends discrimination claims that have been filed with the State of Wisconsin Equal Rights Division and the Equal Employment Opportunity Commission. Christine also has extensive experience in evaluating and drafting federal and Wisconsin state affirmative action plans, as well as advising on compliance reviews.

414.287.9232
Katheryn A. Mills, Godfrey Kahn, Labor Litigation Lawyer, Employment Immigration Attorney
Associate

Katie Mills is an associate in the firm’s Milwaukee office and a member of the Labor, Employment & Immigration Practice Group.

While attending law school, Katie was an intern at Marquette University Office of the General Counsel and served as a summer law clerk for the Wisconsin Public Service Commission conducting legal research. She also was a research assistant for Dean Matthew Parlow, Marquette Law School Associate Dean for Academic Affairs and Professor of Law.

Also during law school, Katie was a Comment Editor...

414.287.9213