OSHA and the EEOC Weigh In on COVID-19 in the Workplace

March 20, 2020

Two federal agencies have issued guidance and informational documents on dealing with the COVID-19 virus in the workplace.

The Occupational Safety and Health Administration (OSHA) has issued a guide for employers on how to prepare workplaces for dealing with the COVID-19 virus.  OSHA discloses at the beginning of the guide that it is (1) advisory in nature; (2) informational in content; and (3) does not create new legal obligations or alter existing obligations on employers.  Almost immediately thereafter, however, OSHA notes that employers are required by the General Duty Clause to provide workplaces that are free from recognized hazards likely to cause death or serious physical harm.  So, OSHA is clearly linking the risk of COVID-19 to potential liability under the General Duty Clause.

The OSHA guide lists steps that employers can take to reduce employee exposure to the coronavirus, including developing infectious disease preparedness and response plans, basic infection prevention measures, and policies and procedures for identifying and isolating employees with signs of the virus.  The guide also classifies the risk of worker exposure to COVID-19 at four different levels of risk – lower, medium, high, and very high – and recommends measures for protecting employees in those categories.

The guidance document is available at www.osha.gov/Publications/OSHA3990.pdf. The OSHA website also has other useful guides and links devoted to COVID-19 information, at www.osha.gov.

On a related note, the U.S. Equal Employment Opportunity Commission (EEOC) has issued a guidance document (https://www.eeoc.gov/) clarifying how employer precautions against COVID-19 fit with the Americans with Disabilities Act (ADA) and the Rehabilitation Act.  Among other things, the EEOC says employers may:

    • Ask employees who call in sick if they are showing symptoms of COVID-19;
    • Measure employees’ body temperature (though the EEOC cautions that some people with COVID-19 do not have a fever);
    • Require employees with COVID-19 symptoms to leave work and to stay home;
    • Require doctors’ notes certifying that employees are fit to return to work.  The EEOC acknowledges that health care professionals may be too overwhelmed to provide such notes, so other methods, such as alternative forms, stamps, or emails may be necessary;
    • Screen job applicants for COVID-19 symptoms after making a conditional offer of employment, as long as the employer does so for all entering employees in the same type of job;
    • Take a job applicant’s temperature as part of a conditional post-offer pre- employment examination.
    • Delay the start date of an applicant with COVID-19 or symptoms related to it; and
    • Withdraw a job offer when it needs the applicant to start immediately but the applicant has COVID-19 or symptoms of it.

Contact a Ruder Ware employment law attorney for questions about this or any other COVID-19 issue.

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