COVID-19 Agency Update: CDC and Essential Workers, EEOC and Non-Discrimination, OSHA and COVID-19 Recordkeeping/ Enforcement, DOL and Unemployment Compensation Under CARES, and VETS and COVID-19 National Guard Service

By Fiona W. Ong - Shawe Rosenthal LLP

April 15, 2020

During the past week or so, various federal agencies have issued additional COVID-19 guidance of significance (more or less) to employers, including the Centers for Disease Control and Prevention (CDC), the Equal Employment Opportunity Commission (EEOC), the Occupational Safety and Health Administration (OSHA), the Department of Labor (DOL), and the Veterans’ Employment and Training Service (VETS). We summarize these developments below.

CDC and Essential Workers. The CDC issued Interim Guidance stating that “critical infrastructure workers” are permitted to continue working despite potential exposure to COVID-19. Potential exposure means contact within 6 feet of an individual with confirmed or suspected COVID-19, up to 48 hours before the individual became symptomatic. Such exposed employees may work as long as they are asymptomatic and additional precautions are taken:
•    Employers should measure the employee’s temperature (ideally before entering the facility) and assess symptoms prior to beginning work.
•    The employee should self-monitor for symptoms under supervision of the employer’s occupational health program.
•    The employee should wear a face mask or covering, which can be provided or approved by the employer, for 14 days following exposure.
•    To the extent possible, the employee should maintain a distance of 6 feet from others in the workplace.
•    Work spaces such as offices, bathrooms, common areas, and shared equipment should be cleaned and disinfected routinely.

If the employee becomes ill, they should be sent home immediately and their workspace cleaned and disinfected. Other employees who came within 6 feet of the employee during the two days prior to any symptoms would themselves be considered exposed and subject to the guidelines above.

EEOC and Non-Discrimination. The EEOC expanded its technical assistance publication, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” to address additional concerns about non-discrimination and reasonable accommodations. Of particular interest:
•    Medical Information:
   o    Employers may ask about any symptoms that have been identified by public health authorities as associated with COVID-19, including loss of smell/taste and gastrointestinal problems.
   o    COVID-19-related medical information may be stored in existing confidential medical files, without requiring the creation of new files.
   o    Employers who conduct daily temperature checks may retain a confidential log of the results.
   o    Employers may disclose the names of employees with COVID-19 to public health authorities.
   o    Temporary staffing agencies and contractors may notify the host employer if any assigned worker has COVID-19.
•    Reasonable Accommodations:
   o    Employers must provide reasonable accommodations to eliminate possible exposure for an employee whose disability puts them at a greater risk from COVID-19. These may include changes to the work environment (e.g. designating one-way aisles or using plexiglass, tables, or other barriers for distancing), as well as temporary job restructuring of marginal job duties, temporary transfers to a different position, or modifying a work schedule or shift assignment.
   o    Employers should engage in the normal interactive process for employees whose pre-existing mental health conditions have been exacerbated by the COVID-19 pandemic.
   o    In order to prepare ahead of time, employers should engage in the normal interactive process for accommodations in the actual workplace, even if the employee is currently teleworking.
   o    An employee may be entitled to an additional or altered accommodation because they are now teleworking. The employer may discuss whether the request is due to the existing or a new disability, and why a change is required.
•    Anti-harassment:
   o    The EEOC offers various resources, including policy tips and checklists, to help employers communicate to the workforce that fear of COVID-19 should not be misdirected against individuals because of a protected characteristic.
•    Severance agreements:
   o    The EEOC reminds employers conducting layoffs of the requirements for an effective release of discrimination claims in a severance agreement.

OSHA and COVID-19 Recordkeeping. OSHA issued an Enforcement Guidance memo regarding recordkeeping requirements for COVID-19. According to OSHA, employers must record confirmed cases of COVID-19 if they are work-related and meet the criteria for recording, such as medical treatment beyond first aid or days away from work.

Recognizing, however, that it may be difficult in areas of community transmission to determine whether employee contracted COVID-19 at work, OSHA states that it will not enforce its recordkeeping requirements to require most employers to make work-relatedness determinations for COVID-19 cases except where: (1) There is objective evidence that a COVID-19 case may be work-related; and (2) The evidence was reasonably available to the employer. The non-enforcement action does not apply to employers in the healthcare industry, emergency response organizations (e.g. emergency medical, firefighting and law enforcement services) and correctional institutions, who must continue to make work-relatedness determinations.

OSHA and Enforcement. OSHA also issued an Interim Enforcement Response Plan, setting forth the instructions and guidance to OSHA personnel with regard to handling COVID-19-related complaints, referrals and severe illness reports. The plan prioritizes fatalities and imminent danger exposures, with particular attention given to healthcare organizations and first responders. Situations involving high risk of transmission may warrant on-site inspections, while those involving employees in medium or lower exposure risk jobs will normally result in a non-formal phone/fax investigation.

DOL and Unemployment Compensation Under CARES. The Department of Labor issued four separate documents providing guidance to states on the various unemployment compensation programs under the Coronavirus Aid, Relief, and Economic Security (CARES) Act: Federal Unemployment Pandemic Compensation (providing a $600 weekly benefit to eligible individuals), the Pandemic Unemployment Assistance Program (providing benefits to those ineligible for regular unemployment compensation, such as self-employed workers, independent contractors, and gig workers), the Pandemic Emergency Unemployment Compensation Program (providing an additional 13 weeks of benefits); and the CARES Act Summary of Key Unemployment Insurance Provisions. Notably, these programs work in conjunction with each other. Our detailed summary of these guidance documents can be found here.

VETS and COVID-19 National Guard Service. As reported in the media, the National Guard has been called out to assist with certain COVID-19 related activities. The DOL’s Veterans’ Employment and Training Service offered Frequently Asked Questions regarding COVID-19-related National Guard service under the Uniformed Services Employment and Reemployment Rights Act (USERRA). VETS noted that there are no new rights and obligations under USERRA, but applied those rights and obligations in light of COVID-19 as follows:
•    USERRA’s employment and reemployment protections apply if an employee is called to National Guard duty under federal – but not state – authority. (State law protections may apply, however). The authority can change during the employee’s service.
•    An employee may still be laid off or furloughed upon return from their military (including National Guard) service if they would have been subject to that action unrelated to their service.
•    An employer cannot delay reemployment based on a concern that the employee may have been exposed to COVID-19 during their service in a COVID-19 affected area. If the employee has been exposed to or has become infected with COVID-19, the employer must make reasonable efforts in order to qualify the returning employee for their proper reemployment position. According to VETS, these efforts can include temporarily providing paid leave, remote work, or another position during a period of quarantine. While VETS does not address whether unpaid leave would be reasonable, other agencies would apparently allow for leave that is unpaid if paid leave is otherwise unavailable.

This is obviously a fast-moving and ever-changing situation.