BACK IN THE WORKPLACE AFTER COVID-19 (Part II) EMPLOYER GUIDELINES

In the past three months, employers across the country have been relentlessly impacted by the coronavirus and forced to face unprecedented situations such as implementing telework, layoffs, furloughs and terminations. Many organizations are now getting ready to bring their workers back and are developing guidelines to maintain a safe and healthy workplace.

The last bulletin, “Returning To Work After COVID-19” discussed considerations of WHEN and HOW to resume operations. As a follow-up, below are updated guidelines and tools issued by the government and regulatory entities to assist employers during the re-opening phase and to help resolve scenarios organizations may encounter during the process.

CDC – The Centers for Disease Control and Prevention released a flowchart designed to provide guidance on how workplaceschild care centers,schools, restaurants, bars, and other establishments could begin the process of reopening in the face of the coronavirus.

FEMA – The Federal Emergency Management Agency developed an Exercise Starter Kit to help organizations navigate through reopening while ensuring the well-being and safety of their employees as they return to full operation.

DOL – In an effort to assist those impacted by COVID-19, the Department of Labor has implemented the following laws and resources to assist employers and employees:

    • Families First Coronavirus Response Act (FFCRA) provides paid emergency sick leave, as well as paid emergency FMLA to qualifying employees. Effective April 1, 2020 through December 31, 2020, employers with 499 or fewer employees must post the notice to explain the law’s emergency paid leave provisions. The posters can be found here: Non-Federal Employee Rights, Federal Employee Rights.
    • Updated FFCRA Q&A which provides the latest compliance assistance to employers and employees on their responsibilities and rights under the FFCRA.

OSHA – Issued the Guidance on Preparing Workplaces for COVID-19 to improve work safety;

    • Effective May 26 2020, new OSHA’s guidance requires employers who are obligated to submit OSHA logs to determine whether employees who have contracted COVID-19 did so while at work.
    • The home page includes Overview, News and Updates about the evolving coronavirus pandemic.

EEOC – The U.S. Equal Employment Opportunity Commission has provided guidance entitled Pandemic Preparedness in the Workplace and the Americans with Disabilities Act that can help employers implement strategies to navigate the impact of COVID-19 in the workplace while identifying established ADA and Rehabilitation Act principles to answer questions frequently asked about the workplace during a pandemic.

DID YOU KNOW… REGULATORY COMPLIANCE and COVID-19

Fear is Not an Eligible Reason under FFCRA

    • If an employee is fearful of reporting to work, they would not be eligible for leave under FFCRA (nor for unemployment compensation).
    • If schools are opened or childcare becomes available, employees would no longer be eligible for leave under FFCRA. Removal of a child from school or childcare due to fear is not covered.

EEOC Provisions Related to COVID-19:  EEOC guidance provides that employers can require employees to wear personal protective equipment at the worksite.

    • If PPE is required, the employer is responsible to cover the costs of the PPE.
    • Workers who refuse to undergo required disease-prevention measures may be barred from entering the workplace.
    • EEOC guidance states that employers can screen or test on-site employees for COVID-19 as a condition of entering the workplace.
    • Employers do not need to test all workers entering the workplace for COVID-19 or related symptoms; however, they must have a reasonable, objective basis for selecting and testing only certain employees.

OSHA recordable criteria related to COVID-19:  A case of COVID-19 may be considered Recordable under Worker’s Compensation if:

    • there is a confirmed case of COVID-19 as defined by the Centers for Disease Control;
    • the case is work-related as defined by OSHA regulations which state that an injury or illness is work-related “if an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness”; and the case involves one or more of OSHA’s general recording criteria, which are:

a) Death;

b) Days away from work;

c) Restricted work or transfer to another job;

d) Medical treatment beyond first aid;

e) Loss of consciousness;

f) A significant injury or illness diagnosed by a physician or other licensed health care professional.

To help employers determine whether an employee’s COVID-19 case was likely contracted at work, OSHA provides factors for employers to consider:

    • Whether there are several cases among workers who work(ed) closely together and there is no alternative explanation;
    • Whether an employee contracted COVID-19 shortly after lengthy close exposure to a customer or a coworker who confirmed positive and there is no alternative explanation;
    • Whether the employee’s job duties have them in frequent, close exposure to the general public in an area with ongoing community transmission and there is no alternative explanation;
    • Whether the employee is the only worker to contract COVID-19 and the employee’s job duties do not include frequent contact with the public, regardless of community transmission; and
    • Whether the employee, outside of work, has close and frequent contact with someone who has COVID-19.

If determined to be work-related, COVID-19 should be coded as a respiratory illness on the OSHA 300 Log. If an employee voluntarily requests that their name not be entered on the OSHA 300 Log, the employer must not publish the employee’s name.

OSHA Document Retention Requirements:

OSHA considers the taking of body temperatures to be a medical record; therefore, if the result of the testing is written down, employers must treat the written document as Protected Health Information and must retain such records for a period of 30 years (29 C.F.R. § 1910.1020). If instead you only take the employee’s temperature, read the result on the thermometer, and make a “pass-fail” judgement as to whether the temperature is under 100.4F or not, then no written record is being created and thus there is no 30-year retention period triggered.

If you or any of your team have any questions, or if you’d like a more in-depth review of your own situation, please contact HR Service Inc. at (801) 685-8400. We’d be happy to help!

Prepared by Sara Jacobs

Human Resources Business Partner 

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