This resource is provided by WLJ Labor & Employment Team attorneys Daveante Jones, Jane Kim, Shelby Howlett (email@example.com) and summer associate Taylor Wilbourn.
As the number of infections continue to remain steadfast in the state of Arkansas, employers need to continue to be vigilant in protecting their employees and helping slow the spread of COVID-19.
Employers may be tempted into complacency based on Governor Hutchinson’s June 15th Executive Order 20-33 addressing business liability related to COVID-19. Particularly, Executive Order 20-33 sets out to protect all businesses and their employees by providing immunity from civil liability as a result of exposure to COVID-19. The Executive Order does not apply to willful, reckless, or intentional misconduct, however, and immunity is not extended to workers’ compensation benefits. While it is presumed that a business is not acting willful or reckless if substantially complying with public health directives, it is still arguable that Executive Order 20-33 is not legally enforceable or able to provide immunity to the full extent it sets out to provide. There are also federal laws and regulations that could be implicated if an employer does not provide a safe and sanitary workplace for its employees, and a state Executive Order will not provide any immunity. For instance, the Occupational Safety and Health Administration (OSHA) has received thousands of complaints from employees in connection with COVID-19 and workplace safety—primarily relating to the lack of or inadequate personal protective equipment (PPE), lack of soap and other hygiene products, and having to work in close proximity to other workers. These complaints have often led to civil fines and penalties when credible. The same goes for potential claims under the Americans with Disabilities Act (ADA) if employers fail to accommodate an employee with a disability even if all of the aspects of a state Executive Order is followed.
Knowing that Executive Order 20-33 provides no guarantees against all COVID-19 related employment claims, the best way for an employer to protect employees and their business is to keep up with relevant federal, state, and local guidance, do everything possible to follow that guidance, and document its efforts. Additionally, OSHA has issued guidance that recommends employers prepare and implement a COVID-19 workplace safety and response plan. Not only will it help out from a liability standpoint, this type of plan should help ease heightened anxiety among employees as they return to work. The plan should address topics such as:
- employee screening and PPE,
- providing a safe and sanitary work environment, and
- response procedures when an employee is exposed to or tests positive for COVID-19.
Employee Screening & PPE
The plan should include and describe any health screening procedures and PPE requirements that are being implemented.
The Equal Employment Opportunity Commission (EEOC) has confirmed that temperature checks are a permissible screening mechanism to use during the COVID-19 pandemic. The Centers for Disease Control and Prevention (CDC) has issued guidance providing methods for employers and businesses to safely conduct temperature checks. The CDC has laid out two options for on-site screenings:
- Social Distancing: Have the employee take their own temperature. A manager, at least six feet away from the employee (e.g., inside the threshold of the workplace) monitors.
- Barrier/Partition Controls/PPE: A screener stands behind a physical barrier (e.g., glass or plastic window, partition) or wears PPE including a face mask, eye protection (e.g., goggles, disposable face shield that fully covers the front and sides of the face), disposable gloves and a gown and takes employees’ temperatures.
Under either approach, after the temperature check, the screener asks employees to confirm verbally that his or her temperature is less than 100.4 o F and that he or she has not been suffering from symptoms such as coughing or experiencing shortness of breath, muscle pain, sore throat, or new loss of taste or smell. Finally, the screener conducts a visual inspection for obvious signs of illness, such as flushed cheeks or fatigue.
Be sure to inquire whether the employee has been exposed to someone that they know has tested positive for COVID-19 within the last 14 days. However, be sure not to ask whether the employee has a family member who has tested positive for or shows symptoms of COVID-19 because it is not allowed by the Genetic Information Nondiscrimination Act (GINA).
When an employee returns from travel, an employer may ask the employee questions about where the person traveled. If the CDC or state or local officials recommend that people who visit specified locations remain at home for a certain period of time, ask whether employees are returning from those locations and, if so, ask the employee to self-isolate in accordance with public health recommendations before physically returning to work.
In conjunction with Executive Order 20-43, the Arkansas Department of Health (ADH) has issued a face covering directive requiring “every person in Arkansas to wear a face covering completely over the mouth and nose in all indoor environments, excluding private residences, where they are exposed to non-household members and distancing of six (6) feet or more cannot be assured.” Face coverings are also required in certain outdoor settings. One way to encourage employees to comply with the directive and wear PPE is to provide masks and/or gloves for employees to use. In the event that employees wear gloves, the employees should change their gloves as often as possible.
There are certain exemptions and other factors that employers should keep in mind while implementing these procedures. Certain employees may need a reasonable accommodation under the ADA. The ADH’s directive also exempts any person performing job duties where a six-feet distance is not achievable, but a mask is inhibitory to the activity or active exercise and people in counties where the ADH has certified that risk of community transmission of COVID-19 is low. Employers should be sure to stay informed of all possible exceptions.
Safe & Sanitary Work Environment
The plan should include and describe any increased or routine cleaning and social distancing efforts and requirements that are being implemented.
For instance, develop procedures that limit the number of people entering the workplace by maintaining remote working, allowing flexible work hours and/or staggered shifts, and continuing delivery of products through curbside pick-up or delivery. Assess and reconfigure the physical setup of workspaces by designating one-way aisles or using plexiglass, tables, or other barriers to ensure minimum distances between customers and coworkers whenever feasible. Also, limit in-person meetings and maximize physical distance in meeting rooms.
Some increased and routine cleaning efforts may include requiring employees to frequently and thoroughly wash their hands. Employers can also install or place hand sanitizer stands at entrances and by the restrooms. Make sure employees practice good respiratory hygiene, such as sneezing or coughing into a tissue (then properly disposing of it) or into his or her elbow. In addition, make sure that employees are using cleaning solutions in accordance with CDC guidance and that the employees are trained on the hazards of cleaning chemicals used in the workplace in accordance with OSHA’s Hazard Communication standard. See 29 C.F.R. § 1910.1200.
Limit the use of common areas. This could include making sure that cafeterias or shared eating spaces are social distancing appropriate. It could also include discouraging the use of shared utensils and dishes by providing disposable utensils and dishes.
The ADH has also required that employers/businesses post signs at all entrances advising the public that they:
- Cannot enter if they have fever, cough shortness of breath, sore throat, or loss of taste or smell, and if they have had exposure to someone with COVID-19 in the past 14 days; and
- May wish to refrain from entering if they are 65 years of age or older or have underlying health conditions including high blood pressure, chronic lung disease, diabetes, severe obesity, asthma, or weakened immunity.
Examples can be found here.
To implement these efforts, it is more than likely that employers will need to increase their supply of hand sanitizer, cleaning chemicals, and masks and other PPE. Finally, make it clear that workplace safety concerns should be reported and should include a reporting mechanism with an anti-retaliation provision.
Response Procedures When an Employee is Exposed to or Tests Positive for COVID-19.
The plan should include and describe the protocol for managing an employee who gets sick while at work or who reports having contact with someone with a known case of COVID-19, along with any other employees who may be exposed.
Possibly Sick Employees
When dealing with a possibly sick employee, employers need to set forth the expectation not to report to work and immediately report if having COVID-19 symptoms while at work. In the event an employee reports having COVID-19 symptoms at work, the CDC instructs that the employee should be sent home immediately or isolated if the employee has to wait for a ride. Employers should also have a procedure in place for the safe transport of an employee if the employee needs a ride home or to a healthcare provider.
Clean the areas occupied by the potentially sick employee in accordance with the CDC’s cleaning and disinfection recommendations. Employers should wait 24 hours, or as long as possible if 24 hours is not feasible, before cleaning and disinfecting to minimize potential exposure for other employees.
If an employee is teleworking because he or she has COVID-19 or associated symptoms, the employer may tell staff that the employee is teleworking without saying why. If an employee is on leave rather than teleworking because the employee has COVID-19 or associated symptoms, an employer cannot disclose the reason for the leave to other employees, just the fact that the individual is on leave.
Any employees missing work due to sickness may also be eligible for paid sick leave under company policy or local, state, or federal guidelines.
When deciding on an employee’s return, employers need to avoid requiring negative COVID-19 tests or antibody tests because the EEOC does not recommend requiring a negative COVID-19 test and the ADA does not allow employers to require antibody testing. While it is allowed to require a healthcare provider’s notes before allowing employees to re-enter the workplace, employees should not return to work until they meet the CDC criteria to discontinue home isolation and have consulted with a healthcare provider and a state or local health department.
Possibly Exposed Employees
When an employee tests positive for or shows symptoms of COVID-19, employees who have had close contact with the potentially sick employee should be identified and instructed to self-isolate. Both the CDC and ADH define close contact as any individual who was within six feet of an infected person for at least 15 minutes starting from two days before illness onset (or, for asymptomatic patients, two days prior to positive specimen collection) until the time the patient is isolated.
Employers should require employees who come into close contact with COVID-19 outside of the workplace to immediately report the contact to their employer and not report to work until they have completed a 14-day quarantine. Both the CDC and ADH require people exposed to COVID-19 to complete a 14-day quarantine whether the person tests positive or negative for COVID-19.
Both the CDC and ADH have implemented a limited exception to the required 14-day quarantine period for essential Critical Infrastructure workers. There are 16 Critical Infrastructure sectors including healthcare and public health, transportation, and food and agriculture. The other sectors can be found here. Critical Infrastructure workers may continue work following potential exposure to COVID-19 so long as the worker remains asymptomatic, has not had a positive test result for COVID-19, and additional precautions are implemented to protect him or her and the community, including wearing a face covering, physical distancing, and daily screening for fever or symptoms.
With all of this in mind, employers should be sure to implement contact tracing to help guard against a major outbreak. For instance, employers are required to report to the ADH any employees who are diagnosed with COVID-19. The ADH also suggests that employers maintain a log with dates and times of persons entering a facility as to monitor activity and possible contact.
Employers have an additional option in electronic tools to track workers’ contact. If using such tools, employers should attempt to limit the tracing to inside the workplace and educate themselves on privacy concerns that could be implicated.
Implementation & Training
In conclusion, it is critical that employers educate and train managers and employees on all components of the protocols and plans that are implemented. Employers should also consider including an acknowledgement of the training and post the protocols and plans throughout the facility as a reminder for employees.