Authored by: Attorney Dean R. Dietrich
I have seen and read numerous articles about the spread of the Coronavirus and what steps can be taken to “flatten out” the spread in order to control the availability of healthcare and hospital services. We have all read about frequent handwashing and social distancing. What we have not read about is what steps can a business take to address employee health and preserve the workplace from shutting down.
The obvious answers are to contract for more cleaning services and make handwashing stations and tissue boxes available throughout the workplace. These are excellent ideas if the business can find the resources needed for these preventive steps. Hospitals have operated for years with the requirement that all employees clean their hands upon entering and exiting a hospital room. It would be nice to implement the same requirement for every room in your business assuming you could find the handwashing stations to allow that to happen.
Just thinking about trying to sanitize the workplace and control employee behavior brings up so many questions. Here are some of the first steps.
Can a business require employees to use hand sanitizers when going in and out of any room?
Employers can make this a work rule if it can provide the resources to allow this to happen. Finding the resources will be a significant challenge. Labor unions may argue that this is an unreasonable work rule but the circumstances of this emergency situation would allow the business to make this a required work rule. Monitoring employee conduct and disciplining employees for not following the rule will be a real challenge. Businesses may require all supervisors to monitor employees leaving a meeting or even require them to hand out a sanitary wipe for each employee to use.
Can a business ask employees what they did on their day off or what they did on the weekend?
We are now talking about questions of privacy for an individual compared to the right of an employer to address safe working conditions. OSHA requires that every business (subject to the rules) must provide a safe workplace for its employees. This would be the rationale for allowing a business to make every employee report on their activities during the weekend or over a holiday or vacation period. Many employers are not subject to the OSHA requirements but the potential for a serious health condition in the workplace will likely allow employers to make more inquiries about the employee conduct during off work hours.
I do not think it is appropriate to ask each employee to provide a diary of their activities during non-work hours. It would be best that an employer develops a checklist that an employee would complete upon return to work and then have the checklist submitted to someone for review. The checklist would address travel out of the country and travel out of the state. The employer would have the right to ask where the employee traveled to in order to assess whether the employee traveled to a location where an outbreak has occurred.
This whole concept seems quite intrusive but the potential for contamination in the workplace would likely support this type of inquiry. Companies with unions should talk to the union in their workplace about this before implementing a specific policy.
Can an employee be disciplined for refusing to complete a survey upon return to work after vacation or holiday or weekend?
Rather than issuing discipline, a business should consider having a team of supervisors that will interview the employee in person to determine if there is any need for concern about the off-work activities of the employee. I realize this represents another commitment of time when the desire is to be more productive with available employees and available work time but again, the requirement to close the entire office or plant would be more devastating.
Can a business require all employees to be tested for a fever when they arrive at work?
This question requires us to give consideration to what constitutes a medical inquiry or medical examination under the Americans with Disabilities Act? Requiring every employee to be tested for a fever at the start of the workday likely qualify as a medical examination under the ADA. Again, the emergency aspects of this pandemic may allow an employer to make this inquiry without being subjected to legal challenge even though some employees will be offended by this activity. I think a better strategy is to remind employees even on a daily basis, that they should not report to work if they are not feeling well, suffering from a fever, or suffering from flu-like symptoms. This type of communication would protect the company from liability if an infected employee comes into the workplace and contaminates a number of other employees. Unfortunately, this virus may result in contamination before an employee even knows that they are sick or feeling sick. I am afraid that there will be some instances where contamination will occur and simply cannot be avoided.
Can an employer require an employee to be tested or sent home if other employees complain about coughing or evidence of sickness experienced by an employee?
This seems to be the area where an employer can step in and address a potential problem in the workplace. We can easily assume that employees will be monitoring the health of other employees in the workplace and looking for examples of an employee exhibiting signs of potential infection such as coughing, and complaints of body aches. If employees complain about the apparent sickness of a co-employee, the best practice is for the employer to be proactive and meet with the suspect employee to observe the condition of the employee and ask questions about the information brought forward by other employees. Again, this would be considered a or medical inquiry under the Americans with Disabilities Act and should not be done in a way that targets an employee that may have a disabling condition. On the other hand, the potential for infection in the workplace will give employers some flexibility to make these inquiries as long as the employer documents the information provided from co-employees and acts reasonably under the circumstances. This means that the employer does not target particular employees based upon race or physical conditions but rather makes an inquiry based upon information provided to the employer that provides a reasonable basis for such inquiry.
The measuring tool for determining whether or not to make an inquiry of an employee is the seriousness of the information brought forward by other employees and the reasonableness of an inquiry based upon the concern about the working conditions in the office or plant. In other words, the inquiry should be based upon work-related concerns instead of based upon hysteria or unreasonable expectations about the employee’s conduct.
This is clearly a challenging area but employers need to act reasonably in making an inquiry as to whether or not someone is exhibiting physical behaviors that could be related to the Coronavirus contamination.
Can an employer require an employee to be tested for the Coronavirus?
An arbitrary decision to have every employee tested for the Coronavirus seems to be beyond the scope of the reasonableness standard that would apply to making a medical inquiry of the condition of an employee. This may not be a logical option simply because of the lack of resources at this time. Also, if the employer is making this a requirement for an employee to
come to work, a very good argument can be made that this is an expense that must be paid by the company like a fitness-for-duty examination that is often used when an employee suffers from a significant medical condition. I do not recommend this policy be instituted by a business and rather recommend that some type of testing only be required if an employee is exhibiting the characteristics of the Coronavirus condition. This, of course, requires the employer to have some type of reasonable verification that the employee is suffering from an illness that could be linked to the Coronavirus.
Employers are faced with very challenging employment considerations as we work through this pandemic. It does not appear that we will be able to do regular or routine testing of employees for the virus for a longtime and maybe never. Employers need to act reasonably and use the standard of work-related inquiries when dealing with potential situations where an employee is exhibiting signs of suffering from the Coronavirus.
