Legal Risks with Reopening Businesses— Planning Should Start Now!
Posted: May 1, 2020 | News
The economy shut down almost overnight. It won’t re-open that way. The re-opening of the economy not only will be gradual and phased, it will likely be accompanied by litigation brought by plaintiffs’ lawyers claiming that the business put employees’ and customers’ health at risk of contracting coronavirus. Litigation is so certain, White House Economic Adviser Larry Kudlow has called for legislation to protect businesses from such lawsuits, lest business be crippled by litigation out of the gate.
Certain states are beginning to experiment to reopen economies. As politicians and public health officials spar over when and under what circumstances businesses may re-open and individuals go back to work, California businesses should begin now to plan how they will address the myriad of complex legal issues, especially employment issues, as their businesses eventually re-open and employees and customers return to the workplace. Granted, legal and governmental guidance may continue to evolve, but getting a head-start on exploring these issues and potential resolutions will serve companies well.
A sampling of the issues for employers to begin studying and planning for is below:
Actions to Protect “Essential Workers” and to Protect Others from Them—Potential Guidelines for All Returning Employees?
Suppose a business owner does not know if returning employees are sick or have been exposed to COVID-19. Suppose the business has confirmation of, or suspects a given worker was exposed to COVID-19. What should the employer do? When can such workers return to the workplace and what actions must a business take to protect against infection of others? Is the employer legally negligent if that worker is admitted to the workplace and others contract the disease?
On April 8, 2020, the Centers for Disease Control and Prevention (“CDC”) issued helpful guidance concerning “Critical Infrastructure Workers” who may have been exposed to a person with confirmed or suspected COVID-19. This guidance is instructive to businesses and all workers.
To ensure continuity of essential functions, the CDC’s April 8, 2020guidance advised that such employees may be permitted “to continue to work following potential COVID-19 exposure, provided they remain asymptomatic and additional precautions are implemented to protect them and the community.” A potential exposure was defined as “being a household contact or having close contact within 6 feet of an individual with confirmed or suspected COVID-19.” The CDC further explained that “the timeframe for having contact with an individual, includes the period of time of 48 hours before the individual became symptomatic.” The CDC advised that Critical Infrastructure Workers, who have had an exposure but remain asymptomatic, should adhere to the following practices prior to and during their work shift:
- Pre-Screen - “Employers should measure the employee’s temperature and assess symptoms prior to them starting work — “ideally,” temperature checks should occur before the individual enters the place of business. (See discussion below concerning the lawfulness and requirements of an employer testing for COVID-19.)
- Wear a Face Mask - “The employee should wear a face mask at all times while in the workplace for 14 days after last exposure. Employers can issue face masks or can approve the employee’s supplied cloth face coverings in the event of shortages…”;
- Social Distancing - The employee should maintain at least six feet of distance and otherwise practice social distancing “as work duties permit in the workplace.” Businesses should consider re-purposing or re-configuring workspace to facilitate social distancing. For example, in an effort to reduce the widespread return of COVID-19, Governor Cuomo has urged designing conference rooms and workspaces, to help ensure social distancing, such as desks being at least six feet apart.
- Regular Monitoring - “As long as the employee doesn’t have a temperature or symptoms, they should self-monitor under the supervision of their employer’s occupational health program.”
- Disinfect and Clean workspaces - “Clean and disinfect all areas such as offices, bathrooms, common areas, shared electronic equipment routinely.” If the employee becomes sick during the day, they should be sent home immediately. Surfaces in their workspace should be cleaned and disinfected.
- Retain Information - “Information on persons who had contact with the ill employee during the time the employee had symptoms and 2 days prior to symptoms should be compiled.”
- Others who are exposed - “Others at the facility with close contact within 6 feet of the employee during this time would be considered exposed. Employers should implement the recommendations in the Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 to help prevent and slow the spread of COVID-19 in the workplace.”
Face masks - Requiring all employees to wear face masks in the workplace appears to be a requirement worth underscoring given the abundance of recommendations for the practice. For example, on April 12, 2020, New York Governor Cuomo issued an executive order requiring all employees of essential businesses, who are present in the workplace, to wear face coverings when in direct contact with customers or members of the public from April 15 through May 12, 2020. These face coverings must be provided at the essential employers’ expense. While California Governor Newsome has not issued an executive order requiring all workers or the general public to wear face masks, he has recommended it. Further, the California Health and Human Services Agency, Department of Public Health, issued guidance recommending the wearing of “face coverings.” Some California counties such as Riverside County, require all residents to wear face masks in public, and fines violators $1,000.
Telecommuting - An employer should consider whether certain workers can perform their job responsibilities remotely rather than in the workplace. For example, Governor Cuomo has emphasized telecommuting for those whose jobs enable them to do so, as well as for the most vulnerable.
Guidelines for Non-Essential Workers
Can and should employers apply the above-highlighted CDC essential-worker guidelines to non-essential workers, in whole or in part? Do they risk potential liability if they do not do so? One essential facet of the CDC Guidelines should be given special attention is the requirement of testing of employees and temperature screenings.
As businesses begin to plan their reopening, will the CDC’s temperature check recommendation be expanded to cover all businesses with on-site employees? And, will employers risk liability under the Americans with Disabilities Act (ADA) and analogous state and local laws, if they conduct temperature screenings?
The ADA regulates both disability-related inquiries and medical examinations. The Equal Employment Opportunity Commission (EEOC), the federal agency charged with enforcing the ADA, advises an inquiry is disability-related if it is likely to elicit information about a disability, such as asking an individual if his or her immune system is compromised. This is because a weak or compromised immune system can be closely associated with various ADA-protected disabilities. On the other hand, questioning an employee about whether he or she is experiencing cold or seasonal flu symptoms, is not likely to elicit information about a disability.
Is it proper for an employer to test employees for COVID-19? On April 23, 2020, the EEOC updated its guidance for employers, as to whether they may lawfully require employees to be tested for COVID-19 as a condition of returning to work. The EEOC determined that such testing is permissible. The EEOC reasoned that an employee with COVID-19 would pose a direct threat to the place of business and other employees. Accordingly, the EEOC stated that employers may require such testing as a condition of allowing an employee to enter the workplace (in addition to other measures). That said, the EEOC did state that employers should “ensure” that required testing is “reliable and accurate.” To accomplish this, the EEOC recommended that employers consult with the FDA, CDC, and other public health agency guidance on what is reliable and accurate testing.
What about medical examinations specifically? The EEOC has taken the position for a considerable time, that temperature screens are medical exams for purposes of the ADA. Under its traditional analysis, the EEOC permits post-hire employee disability-related inquiries or medical examinations, only if they are job-related and consistent with business necessity. To meet this standard, an employer must have a reasonable belief, based on objective evidence, that:
- An employee’s ability to perform essential job functions will be impaired by a medical condition; or
- An employee will pose a direct threat due to a medical condition—that is, a significant risk of substantial harm to the health or safety of the employee himself or herself or to others—that cannot be eliminated or reduced by reasonable accommodation.
What about COVID-19? The EEOC more recently stated the COVID-19 threat justified employers to take employees’ body temperatures without running afoul of the ADA. In its summary of its April 17, 2020, guidance, the EEOC noted that “the ADA … continue[s] to apply during the time of the COVID-19 pandemic, but … do[es] not interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state/local public health authorities about steps employers should take regarding COVID-19.” Given that the CDC and state and local governmental authorities, including health departments, are mandating or recommending various measures to limit COVID-19 or prevent its spread, this statement arguably supports the right or even duty of employers to do temperature checks of employees.
Moreover, the EEOC acknowledged as employees return to work, businesses that follow CDC guidance or that of other public health authorities, will not violate the ADA, by taking temperatures, inquiring about symptoms, requiring self-reporting of all workers entering the workplace. Of course, the business must do so on a non-discriminatory basis. However, the EEOC cautioned employers they should continue to follow the most current information on maintaining workplace safety, because guidance from public health authorities is likely to change as the COVID-19 pandemic evolves. This conclusion is reinforced by the fact that many counties in California have issued orders requiring employers to provide or require masks and to adopt social distancing requirements on the job. Some orders even require companies to permit their employees to wash their hands every thirty minutes.
Protect Employee Medical Information
As noted, the CDC guidance lists information about employee’s COVID-19 health status should be stored, however, employers should take steps to protect the confidentiality of employee medical information. California’s privacy law, the CCPA, requires this. The ADA also requires all medical information about a particular employee, be stored separately from the employee’s personnel file, thereby limiting access to this confidential information.
So, what is COVID-19 medical information? Medical information related to COVID-19 includes employees’ statements that they are, or suspect that they are infected, and the results of taking employees’ temperature. Further, California employers must take steps to assure compliance with the CCPA’s requirement that employers give employees advance notice of personal information the employer collects and the purposes for which it will be used. These notices must be provided before information is collected.
Although businesses must take steps to prevent the disclosure of medical information, such as not disseminating the identity of an employee who has tested positive for COVID-19, what the EEOC has suggested here is certain flexibility in applying these rules in the wake of the COVID-19 pandemic. In its April 17, 2020, guidance, the EEOC acknowledged that an employer may disclose the name of an employee to a public health agency when it learns that the employee has COVID-19. Perhaps even of more help is the fact the EEOC stated that a temporary staffing agency or a contractor that placed an employee in an employer’s workplace, may notify such employer if it learns that the temporary employee has COVID-19, explaining that the employer may need to determine if this temporary worker had contact with others at the workplace.
To business owners and managers who wonder if they can inquire employees about their COVID-19 health and make limited reports, the EEOC’s most recent guidance is instructive. Based on this guidance, at this time, employers following these guidelines appear to have a defensible legal position against claims.
Safe Workplace Requirements.
California businesses should recall OSHA requires a safe workplace. OSHA has not provided guidance requiring COVID-19 testing, the wearing of face masks, or social distancing. Until such guidance, employers should consider that companies that do health screening may be setting the standard of care required of all employers similarly situated. Considering the general safe workplace requirement, employers would do well to be proactive and take aggressive steps to protect employees through all the means mentioned above (e.g., temperature taking, screening, COVID-19 testing if possible, symptom checks, etc.) and preserve in a separate, confidential file all such information.
There is much more to be said about this subject, including the right and duty of employers to take an interactive approach with employees who have known risk factors. A future blog post may address that topic.
IF YOU HAVE QUESTIONS OR DESIRE GUIDANCE ABOUT HOW TO RE-OPEN YOUR BUSINESS, THE ATTORNEYS AT NORTH & NASH LLP ARE HERE TO HELP AND PLEASE CONTACT US.
Author: Partners at North & Nash LLP
 “Kudlow: Businesses Shouldn’t Be Held Liable for Employees and Customers Getting Coronavirus,” Politico, April 22, 2020, found at https://www.politico.com/news/2020/04/22/larry -kudloe-businesses-coronavirus-nfections-201026.
 Georgia, Oklahoma, Alaska, and South Carolina have already taken steps to restart their economies following a month of government-ordered lockdowns. Colorado, Mississippi, Minnesota, Montana, and Tennessee will join them soon with an experiment to reopen economies without the testing and contact-tracing infrastructure recommended by some experts. See “Next Wave of U.S. States Prepare to Reopen as coronavirus Could Push Jobless Rate to 16%,” Reuters, April 26, 2020, at http:news.trust.org.”
 See “Face Coverings Guidance,” April 1, 2020, Cal. Dept. of Public Health, to General Public.
 “California County Fining Residents $1,000 for Not Wearing Face Masks in Public,” Newsweek, accessible at https:/www.newsweek.com/California-county-fining-residents-1000-not-wearing-face-maks-public-1496692.