A couple of weeks ago, I shared with you a few websites that are curating COVID-19 resources. Always good information to have handy. This situation isn’t going away any time soon. I specifically wanted to find out some information about face masks and taking temperatures. I hear people talking about these two items all the time and thought it could be helpful to learn a little more.
I reached out to an attorney, a friend, and colleague of mine, with some of the legal questions related to these two topics. And thankfully she agreed to be interviewed. Carrie Cherveny is senior vice president of strategic client solutions for HUB International in their risk services division. She works closely with clients to identify compliance risks across the organization and develop responsive strategies and solutions that ensure compliance and further the overall organization goals, including health and welfare programs and employment practices liability. Some of you might remember that Carrie helped us answer a reader question about “HR Careers for Legal Professionals”.
While Carrie is a lawyer, please don’t forget that her comments should not be construed as legal advice or as pertaining to any specific factual situations. If you have specific detailed questions, they should be addressed directly with your friendly neighborhood labor attorney.
Carrie, thanks for sharing your knowledge with us. Let’s start with a question I’m sure you’re asked a lot. Can employers require that employees wear face masks while working?
[Cherveny] Yes. In fact, the Occupational Safety and Health Act (OSHA) General Duty Clause requires employers to provide a safe working environment for their employees. In response to the COVID-19 pandemic, the Center for Disease Control (CDC) has issued robust guidance and recommendations to assist employers with providing a safe working environment for employees. For example, the CDC includes on its employer webpage:
Critical infrastructure workers who have had an exposure but remain asymptomatic should adhere to the following practices prior to and during their work shift:
- Pre-Screen: Employers should measure the employee’s temperature and assess symptoms prior to them starting work. Ideally, temperature checks should happen before the individual enters the facility.
- Regular Monitoring: As long as the employee doesn’t have a temperature or symptoms, they should self-monitor under the supervision of their employer’s occupational health program.
- Wear a Mask: The employee should wear a face mask at all times while in the workplace for 14 days after last exposure. Employers can issue facemasks or can approve employees’ supplied cloth face coverings in the event of shortages.
- Social Distance: The employee should maintain 6 feet and practice social distancing as work duties permit in the workplace.
- Disinfect and Clean Workspaces: Clean and disinfect all areas such as offices, bathrooms, common areas, shared electronic equipment routinely.
Likewise, many states and municipalities are passing rules that require or strongly recommend that people wear masks in any public setting. For example, Palm Beach County, Florida has issued an Emergency Order regarding face masks which states in part that, ‘all other persons physically present in any public place in Palm Beach County are strongly urged to wear facial coverings as defined by the CDC.’
If an employer does require or suggest that employees wear face masks, are they required to supply them?
[Cherveny] The requirement to supply personal protective equipment (PPE) is driven by the OSHA Standards and an assessment of the position. OSHA Standards specify those positions that require PPE. However, the employer’s obligation does not end there. Employers have an obligation to perform their own assessment to determine if their employee’s job duties require PPE to remain safe. Each employer will have to demonstrate how they determined required PPE for each particular position and/or employee. The employer assessments will vary by industry and company. If an employee occupies a position in which PPE is required then the employer may be required to provide the equipment (with the exception of certain items).
For example, employees whose job includes working with blood borne pathogens (BBP) must wear certain PPE and receive specific training with respect to that PPE. The employer must pay for BBP training and PPE. Additionally, the CDC directs that “when engineering and administrative controls cannot be implemented or are not fully protective, employers are required by OSHA standards to among other things, ‘provide appropriate PPE to the workers at no cost’ (emphasis added).
Let’s switch gears to the topic of temperature taking. Can employers take an employee’s temperature before arriving to work?
[Cherveny] Yes, But. Measuring an employee’s body temperature is a medical examination generally prohibited by the Americans with Disabilities Act (ADA). However, on March 18, the Equal Employment Opportunity Commission (EEOC) issued updated guidance, noting that the CDC has recognized COVID-19 having community spread. Based on guidance from the CDC and public health authorities as of March 2020, the EEOC has declared that COVID-19 pandemic meets the ‘direct threat’ standard. Therefore, while temperature testing ordinarily would be prohibited, the EEOC has made it permissible to take employee’s temperatures solely for the purposes of preventing the community spread of COVID-19.
However, the EEOC has cautioned employers that individuals with COVID-19 do not always present with a fever. Notably, the EEOC has also paved the way for employers to perform COVID-19 diagnostic testing. Employers may consider working with third-party vendors for this. The EEOC held a webinar on March 27, 2020 that is also helpful and informative on this topic.
Since you’ve mentioned testing, are employers able to “screen” employees for COVID-19?
[Cherveny] Yes. In addition to taking an employee’s temperature, employers may also consider conducting daily employee pre-screening for those going to the work location. (NOTE: Employers may not ask medical questions or gather medical information from employees who are not coming onsite.) Employers may take an employee’s temperature and/or ask the following questions of current employees coming into the work location:
Are you experiencing any of the following COVID-19 CDC Specified Symptoms or combination of symptoms:
- Shortness of breath or difficulty breathing
Or at least two of these symptoms:
- Fever – (100.4 degrees) – the employer may take the employee’s temperature. The person conducting the daily pre-screening should be provided PPE including an appropriate mask.
- Repeated shaking with chills
- Muscle pain
- Sore throat
- New loss of taste or smell
Employers may also ask employees:
- Are you currently waiting for COVID-19 test results?
- Have you tested positive for COVID-19?
Employers may approach employee pre-screening in a number of ways that may fall into two general categories:
Onsite pre-shift screening conducted by an employee or third-party vendor prior to entering the work location. If the employer opts for onsite screening by its own employees, employers must ensure that the person conducting the screening follows and complies with PPE guidelines such as wearing a mask, gloves, protective eyewear, and other devices to ensure their safety. The employer and the person handling the temperature checking (and any other screening measures) must ensure that they follow and enforce safety measures such as social distancing. For example, the ‘screener’ must ensure that employees who are ‘waiting to be screened’ remain at least 6 feet apart before entering the workplace.
Employee daily self-reporting either prior to coming to work or at work but prior to entering the work location. If the employer opts for self-reporting, it must ensure that it has developed written policies and protocols for employees including a signed acknowledgement of the policy. Employers must be sure to clearly communicate its expectations of its employee’s behavior and conduct and likewise, it must be sure to hold employees accountable for compliance with those policies.
If it’s discovered that an employee is running a fever or discloses that they have symptoms, does the organization need to tell other employees?
[Cherveny] As with all medical information, the fact that an employee had a fever or other symptoms would be subject to ADA confidentiality requirements. The Family and Medical Leave Act (FMLA), ADA, and Workers’ Compensation statutes all contain provisions that protect the confidentiality of an employee’s medical information. Employers have the obligation to ensure that all medical information obtained about an employee is private and confidential.
Medical information obtained directly from the employee for employment purposes (such as under the FMLA or the ADA) is not protected by Health Insurance Portability and Accountability Act (HIPAA) but is protected by strict confidentiality rules. More specifically, only those who ‘need to know’ may be informed of both the employee’s identity and the diagnosis or medical condition. ‘Need to know’ is strictly construed and narrowly defined. The employer has the obligation to safeguard the identity of the employees.
It’s within this confidentiality framework that an employer may decide to share with employees (and potentially visitors/customers) that they have been exposed to someone with the symptoms of COVID-19. If the employer chooses to share this information, they should instruct employees to self-monitor for symptoms.
I can see situations where an employee has a fever or discloses that they have symptoms, but they say, “I feel fine and can work.”. Are there guidelines an employer should follow?
[Cherveny] Employees diagnosed with COVID-19 or who have COVID-19 symptoms without a test should follow CDC-recommended steps. Employees should not return to work until they have satisfied CDC post-diagnosis/illness criteria to return to work:
Test-based strategy. Exclude from work until:
- Resolution of fever without the use of fever-reducing medications and
- Improvement in respiratory symptoms (e.g., cough, shortness of breath), and
- Negative results of a U.S. Food and Drug Administration (FDA) Emergency Use Authorized molecular assay for COVID-19 from at least two consecutive nasopharyngeal swab specimens collected ≥24 hours apart (total of two negative specimens).
Non-test-based strategy. Exclude from work until:
- At least 3 days (72 hours) have passed since recovery defined as resolution of fever without the use of fever-reducing medications and improvement in respiratory symptoms (e.g., cough, shortness of breath); and,
- At least 7 days have passed since symptoms first appeared
It’s important to remember that these guidelines, regardless of the issuing agency, are merely a minimum standard. Employers are encouraged to exceed the agency recommendations to better protect their employees and their businesses.
I’m glad you brought up protection. I know we can’t cover all the contingencies but do employers have any liability where these guidelines are concerned?
[Cherveny] Employers should also consider safety protocols in the workplace in the event they find themselves in the unfortunate position of defending themselves in litigation. Because workers’ compensation carriers may not cover COVID-19 cases, the exclusive remedy provision does not apply and employee-litigants (and their attorneys) are free to pursue other legal causes of action.
Consequently, one area of litigation that appears to be gaining traction is employer negligence. Recently, we have seen cases filed against employers arguing that the employer did not act reasonably to provide a safe working environment to its employees. Most recently a case filed against Wal-Mart, the plaintiff-employee’s estate claims that Wal-Mart did not provide PPE to its employees, did not provide cleaning or disinfectant products, and did not pre-screen workers to prevent the transmission of the virus. Likewise, the cruise industry has already realized class-action negligence claims filed by employees. It is likely that we may see more litigation like this alleging negligence by the employer.
I want to extend a huge thanks to Carrie for sharing her knowledge with us. If you’re looking for additional resources, be sure to check out HUB International’s COVID-19 FAQ. This is a 200+ question FAQ updated each week to consolidate the ever-changing and updated regulatory information across all aspects of employment including benefits, health and safety, and employee relations. You can also check out the CDC Employers Guide and the OSHA Employers Guide.
As a human resources professional, I’ve always thought one of the most complex aspects of compliance is when laws intersect. Like the FMLA, ADA, and Workers’ Compensation. Now we’re adding COVID-19. It’s important to stay on top of the requirements.
When it comes to COVID-19, Carrie and I only scratched the surface of the conversation. I had more questions! Look for part two of this interview in a couple of days where Carrie and I talk contact tracing and what employer should do if an employee is uncomfortable returning to work.
Image captured by Sharlyn Lauby while exploring the streets of Las Vegas, NV18