Employer Q&A on Recent Public Health and Safety Guidelines/Orders

FLB Law      Apr. 16, 2020

Banner about COVID-19As employers continue to manage the impacts of COVID-19 on the workplace and the workforce, the U.S. Department of Labor, OSHA, and the Pennsylvania Department of Health have issued additional guidance. We continue to receive many questions on the practical implications of Agency guidance and new legislation. Below are additional Q&A’s that employers should consider, based on our review of the latest information and governmental orders:

If an employee tests positive for COVID-19, what information should I share and with whom?

  • Generally, employers are required to keep an employee’s medical information confidential; however, an employer may report an employee’s positive COVID-19 status to public health authorities without violating legal requirements. In some situations, employers may be required to report an employee’s positive COVID-19 status to government agencies.
  • An employee who has been exposed to or tested positive for COVID-19 should be made aware of the employer’s need to make certain disclosures to the workforce. Employers should ask the employee to provide information on individuals with whom the employee has been in close contact with during the past 14 days.
  • If the employee has been present in the workplace in the last 14 days, an employer should notify its employees that a co-worker (or visitor) has tested positive for COVID-19; however, the employer should NOT disclose the identity of the individual who has tested positive. Similarly, the employer should not disclose specific information about the employee’s condition or symptoms, nor should the employer disclose the employee’s title or job position.

What is my obligation with regard to retaining COVID-19 medical information related to an employee?

  • A request for COVID-19 related leave under the Emergency Paid Sick Leave Act for any reason other than childcare needs, is confidential medical information protected by the Americans with Disabilities Act.
  • Similar to other medical information, employers must store COVID-19 information securely and separate from the employee’s personnel file. If the employer currently maintains employee medical files in compliance with confidentiality requirements of the Americans with Disabilities Act, COVID-19 information can be stored in that file.
  • If an employer has decided to conduct temperature checks, employers may also retain a list of those results, provided that the list and the information are treated as confidential medical information.
  • Employers should retain all information related to an employee’s request for COVID-19 related leave (both the request and the documentation associated with that request) for at least four years.

Do I need to take action to help prevent COVID-19 related discrimination in the workplace?

  • The Department of Labor recommends that employers “explicitly” communicate to their employees that blame for, or fear of, the COVID-19 pandemic should not be directed against individuals because of their race, national origin, or other legally protected characteristics.
  • Employers should also refrain from making determinations of risk of contracting COVID-19 based on race, country of origin, age, or pre-existing health condition. Instead, employers should focus on employees who demonstrate symptoms of potential COVID-19 infection.

If I am a business that is permitted to remain open, what social distancing, mitigation, and cleaning protocols am I required to follow in Pennsylvania?

  • The following is a summary of the protocols that employers must follow:
    • Employers must clean and disinfect high-touch areas routinely in accordance with CDC guidelines.
    • Establish protocols to be utilized upon discovery that the business has been exposed to a person who is a probable or confirmed case of COVID-19, including: closing off the areas visited by that person and wait at least 24 hours before cleaning these areas; identify the employees that were in close contact with that person; implement temperature screenings; and, directing that employees who have symptoms should remain home.
    • Stagger work start and stop times for employees to prevent large groups entering or leaving the workplace at the same time. Stagger break times to prevent large groups in the break areas.
    • Provide sufficient area for employees to utilize break rooms, locker rooms, and meal areas so that employees can maintain a distance of 6 feet.
    • To the extent possible, conduct meetings and trainings using a virtual format. Prohibit non-essential visitors from entering the workplace.
    • Provide employees with access to regular handwashing/hand sanitizer, and provide employees with masks.
    • Employers should communicate these protocols to employees either orally or in writing. It is recommended that employers communicate these protocols in a written format for record keeping purposes.
    • There are additional protocols for those who serve the public within a building or defined area (for example, grocery stores and physician offices). Those protocols include limitation on occupancy, installation of shields at checkout, encouraging the use of on-line ordering, designating a time for high-risk and elderly to use the business, require all customers to wear masks, and schedule handwashing breaks for employees at least once per hour.
  • Employers are encouraged to consult our in-depth review of the Pennsylvania Department of Health Order from  April 15, 2020.

Our attorneys are here to assist you in interpreting the various federal guidelines and local orders and guide you through implementing any mandatory measure in your business. Please contact us using the form below, or give us a call at 610-797-9000. We wish you well during these extraordinary times.

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