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May 4, 2020

COVID-19 UPDATE: Federal Guidance On Worker Safety As Employers Phase-In Reopening

We continue our efforts to keep you informed of key legal developments relating to COVID-19. Last week, we commented on the Governor’s extension of the Stay-At-Home Order and highlighted the social distancing requirements in the Order for essential businesses and manufacturing companies. Today, we focus on worker safety regulations at the federal level. For our previous updates, please see HERE.

Updated OSHA COVID-19 Alerts and Guidance

The Occupational Safety and Health Administration (“OSHA”) has been regularly posting updates and alerts pertaining to the COVID-19 pandemic. We encourage you to regularly visit the OSHA website to review its developing policies and positions. Most recently, it issued guidance specific to the construction, manufacturing, package delivery, and retail industries.

While OSHA’s guidance largely tracks the Centers for Disease Control and Protection (“CDC”) recommendations for reducing the risk of COVID-19 exposure, it also includes industry-specific recommendations. For example, guidance for construction industry employers includes cleaning shared tools and equipment and keeping in-person meetings (such as toolbox talks and safety meetings) as short as possible, while limiting the number of workers in attendance and using social distancing practices.

CDC Guidance on Cleaning and Disinfecting for Reopening

The CDC recently released its own lengthy and specific guidance for implementation of cleaning and disinfecting plans in the lead-up to the “Reopening of America.” Included with this release is a condensed handout and flowchart which businesses and individuals can reference for creating and managing their plans as employees return to work.

COVID-19 Testing in the Workplace and Compliance with the Americans with Disabilities Act

Lastly, questions have arisen regarding compliance with the Americans with Disabilities Act (“ADA”) issues in light of the COVID-19 pandemic, causing the Equal Employment Opportunity Commission (“EEOC”) to weigh in and provide its own guidance.

To that end, the EEOC has clarified that employers may choose to administer COVID-19 testing, take workers’ temperatures and ask screening questions before permitting employees to enter the workplace without violating the ADA. More specifically, while mandatory medical testing is generally prohibited by the ADA, it will be allowed if it is “job related and consistent with business necessity” and the tests are “accurate and reliable.” Accordingly, employers may take a number of additional steps to determine if employees entering the workplace have the illness and pose a “direct threat” to the health of others. That being said, we highlight that the ADA requires all medical information about a particular employee be stored separately from the employee's personnel file, thus limiting access to such confidential information.

We recommend that employers review the linked guidance as it includes requirements on a broad array of related issues, including: the handling of confidential medical information; hiring issues related to job applicants; the provision of reasonable accommodations for individuals with disabilities, including whether a loss of income to an employer caused by the pandemic may create an “undue hardship” in the context of such accommodations; and the prevention of harassment and discrimination arising from the COVID-19 pandemic.

We will continue to send periodic updates on topics that may be helpful to your businesses. If you have a particular issue that you’d like us to address or if you’d like to be removed from the distribution list, please let us know.

Feel free to contact us with any questions.

Gery Chico, Jon Leach, and Alpita Shah

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