During the COVID-19 pandemic, questions about when employees may or may not travel, how to assess temperature checks at the front door, and a wide array of other issues have continued to crop up. Whenever an employer feels like it’s gotten its arms around the appropriate answers, circumstances change, with states opening and closing, infection rates spiking, and politicians continually issuing new direction and orders.
Regardless of the day or the noise, however, some basic questions remain the same.
What about travel? If your governor, mayor, or other state authority has indicated your state, county, or city is “open,” it can be more difficult to limit personal travel for your employees. Basic safety and Occupational Safety and Health Administration (OSHA) considerations, however, necessitate that you talk with employees before they return to the workspace after personal travel.
Reasonable inquiries about travel include:
- Form of transport used (planes, trains, buses, cruise ships, and other mass transit are higher risk); and
- High-risk activities (e.g., volunteer work in a nursing home with a significant number of COVID-19 cases).
Other factors to consider include a travel companion testing positive for COVID-19, staying at a resort where multiple cases have been logged, or similar issues. Particular attention should also be paid to whether they have chosen to travel to a state with a high coronavirus rate or, in violation of governmental authority, traveled in a “closed” state. These can be routinely checked on the U.S. Centers for Disease Control and Prevention (CDC) and Iowa websites.
Employees with high-risk factors such as plane travel to a state that is currently closed or experiencing a significant spike should be prohibited from returning to the workspace for a minimum of 14 days and 72 hours symptom-free.
What about travel for work? Employers bear a heightened obligation to ensure employees’ safety, particularly when assessing travel for work during the COVID-19 pandemic. Assessment factors should include:
- Travel location;
- How contact will occur;
- What safety measures can be put into place; and
- An appropriate process for contact tracing.
You should maintain contact tracing documentation to minimize the litigation risk. The statute of limitations in Iowa, for example, for a personal injury claim is 2 years, so we generally suggest keeping documentation of this type for a minimum of 3 years. While contact tracing apps may be used, the type of consent and security policies needed vary by state.
What about taking your temperature at the door? Using Iowa as an example again, it should be noted there are two different sets of guidelines in relationship to temperature—one set for healthcare facilities and another for nonhealth-related entities.
If you are in a healthcare facility such as a hospital, long-term care facility, or something similar, the governor hasn’t lessened the restrictions on how and when temperatures should be taken or symptoms assessed and recorded.
Healthcare industry guidelines include posting a person at the door to take and record temperatures and assess potential symptoms. Multiple facilities have received fines and citations for failure to meet the stringent guidelines. Unlike other industries, Iowa healthcare facilities cannot rely on self-certification.
For other industries, the governor has relaxed the restrictions regarding temperature, and this remains a question of generalized assessment of safety and security. The decision to take temperatures (or have employees self-certify temperatures, exposures, and symptoms) is workplace-dependent and currently remains recommended for all industries.
How do I store such information? If they are being kept, temperature logs and notes from discussions relating to symptoms should be treated as employee health records and maintained in your standard employee health file. Employee health files are separate from the standard personnel record and have additional confidentiality protections. Any customer or vendor health records should be kept separately.
The length of time you should keep such records may depend on your industry as well as whether you believe the records will be useful in mitigating future liability concerns. In healthcare or other high-risk industries, you must be able to give the Iowa Department of Inspections and Appeals (DIA), the U.S. Department of Homeland Security (DHS), or other governing agencies documentation that you have done the appropriate temperature and symptom checks to show compliance.
To mitigate issues of personal injury based on the statute of limitations, keep the records a minimum of 2 years, although 3 years is recommended to avoid accidental early destruction of documentation.
Employers in other industries may choose to use the same litigation risk assessment, but those not in high-risk categories could choose either not to record such documentation or to destroy it on a shortened timeframe, such as every week or every 30 days based on their own individual and industry risk assessment. This is something you should discuss specifically with your legal counsel absent other statutory requirements.
Is every COVID-19 case OSHA recordable? No. OSHA has periodically reviewed its guidelines, issuing new amendments and changes to address whether COVID-19 cases are recordable on an employer’s 300 log. Many employers aren’t required to keep 300 logs, and that assessment doesn’t change during the COVID-19 pandemic.
High-risk employers such as healthcare entities, hospitals, clinics, and long-term care facilities typically must record COVID-19 exposures as part of their 300 logs. Moderate- to low-risk industries are required to assess the likelihood of workplace exposure but aren’t automatically required to log COVID-19 cases on the 300 log.
What can I do when my employee keeps exposing herself to COVID-19? As the COVID-19 pandemic has gone on for a longer period than many anticipated, some employers are experiencing a problem with employees who simply don’t care or don’t believe the pandemic is a significant safety issue. This includes employees who routinely meet or interact with others they know have tested positive for COVID-19, employees intentionally exposing themselves as part of a “COVID-19 party,” and similar issues.
Employees who intentionally expose themselves to COVID-19, particularly if it’s in the hope of receiving paid time off (PTO), unemployment compensation, or something similar, are subject to counseling and review of their conduct and in certain egregious circumstances could be disciplined or terminated.
What do I do if an employee has been exposed but doesn’t have any symptoms? Previously, the CDC had generally indicated that individuals could potentially return to work following a positive test after spending 14 days in isolation and being fever-free for 48 hours without the aid of medication. However, the agency now recommends a symptom-based, rather than a testing-based, strategy for ending the isolation if current evidence suggests the individuals are no longer infectious. More information on this change can be found in the article, CDC Issues Guidance on Isolation, Precautions for COVID-19.
Is it a violation of employees’ Constitutional rights to require them to wear a facemask? No. If you are a private employer, the Constitution doesn’t even come into play. Private employers can impose safety rules and regulations within your company without any Constitutional issue or concern. The Constitution could potentially apply to public employers, but reasonable safety requirements and restrictions aren’t considered to violate a constitutional principle even when there may be other factors at play such as religious or disability accommodations.
Reasonable rules and requirements are commonly imposed by governments and employers, even when the employee may or may not recognize the risk. Under state law, you are required to stop at a stop sign even if no other traffic is coming. Failure to do so will result in a fine and citation—masking isn’t all that different.
Can I discipline an employee for refusal to wear a mask, wash her hands, or otherwise follow safety guidelines? Absolutely. If you have determined certain guidelines are necessary for the safety of your employees, you are required to enforce them reasonably and consistently. Choosing not to enforce the guidelines you have set for the basic safety of your employees or that are otherwise set by governmental entities indicates a compliance failure.
Should I have all of my employees tested? Let’s first clarify the two different types of tests. One is to determine whether someone has an active infection, and the other is to determine whether a person has been exposed—an antibody test. The CDC doesn’t recommend employers use antibody tests to determine which employees can work, and the Equal Employment Opportunity Commission (EEOC) doesn’t allow you to require antibody tests.
Certain industries, such as healthcare, may be required to test for active infections under the terms of various contacts, grants, or payment programs. Absent specific state, industry, or contract requirements, testing isn’t mandatory for your workplace as a whole.
As for the question of whether you should test if not required to, it seems unlikely testing will provide significant additional protection from any claims given the limits of the testing process and delays in test results.
Should I have everybody sign a consent form when they return to work? The question of a consent form should be carefully addressed with your legal counsel because there’s no one-size-fits-all answer to this question.
If our business uses a fair number of volunteers, can we bring them back now that our state is open? The risk profile for volunteers will need to be assessed in the same way you would assess any other risk profile during the pandemic. Additionally, special consideration should be given to bringing back minor volunteers because the rules and regulations regarding potential liability for minors differs from that of adults. Although OSHA doesn’t apply to volunteers, the basic safety requirements or OSHA standards would likely be applied as the standard in any volunteer’s claim she has been injured while volunteering.
With the length of time the pandemic has gone on, our employees have now exhausted their Emergency Family and Medical Leave due to school closures, their Emergency Sick Leave due to quarantine for basic exposures, and their unemployment compensation. What next? It isn’t clear what will occur at this time. Many of the benefits we saw, whether it was the Families First Coronavirus Response Act (FFCRA) or the Payroll Protection Plan, were federally based and funded. At the current time, no new funds have been made available, and there has been significant disagreement between the House and the Senate about what, if any, additional action will be taken. This question remains a wait and see.
If your head is spinning with changing guidance, you’re not alone. Each week brings new guidance from governmental agencies as they try to open the economy with the least impact on public health.
There are constants you can keep in mind, however—you can set safety guidelines and enforce them, and you should always keep your eye on the current health situation in your area, adapting your policies to fit the moment. We may not all have an M.D. or Ph.D. in immunology, but we’re going to feel like it at the end of this!