New COVID-19 Guidance from the EEOC and OSHA on ADA Issues and Workplace Transmission Reporting

By Joseph S. Brown, Esq.

Late last week, the U.S. Equal Opportunity Employment Commission (EEOC) and U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) issued updated guidance for employers responding to workplace COVID-19 workplace issues.  Links to the guidance and a brief summary are provided below.

EEOC Guidance on ADA Issues

On April 9, the EEOC updated and expanded technical assistance publication addressing questions arising under the Federal Equal Employment Opportunity Laws related to the COVID-19 pandemic, available here.

The EEOC first issued guidance in March on dealing with the virus, which was based on guidance it had issued in 2009 in response to the H1N1 outbreak. That earlier guidance was summarized by Hurwitz & Fine here.  The latest guidance offers the following updated advice to employers:

Confidentiality

• Employers may keep a log of employees’ temperatures, although they must still maintain their confidentiality;
• Employers can disclose employee’s names to a public health agency when it learns workers have COVID-19.
• A temporary staffing agency or a contractor that places an employee in an employer’s workplace can provide the employer with the worker’s name if the employer learns the employee has COVID-19. This is because the employer may need to determine if the employee had contact with anyone in the workplace.
• An employer may store all medical information related to COVID-19 in existing medical files, as opposed to having to create a new medical file system solely for this information. This information includes an employee’s statement that he has, or suspects he has, the disease, or the employer’s notes or other documentation from questioning an employee about symptoms.
   

Disability Related Inquiries and Medical Exams

• Employers should rely on the CDC, other public health authorities and reputable medical sources for guidance on emerging symptoms associated with the disease. These sources may guide employers when choosing questions to ask employees to determine whether the workers would pose a direct threat to health in the workplace.
• Additional symptoms beyond fever or cough include new loss of smell or taste as well as gastrointestinal problems, such as nausea, diarrhea and vomiting.
   

Reasonable Accommodations

• There may be reasonable accommodations for individuals with disabilities, absent undue hardship to the employer, that could offer protection to an employee who, because of a preexisting disability, is at higher risk from COVID-19.
• If an employee has a pre-existing condition, such as an anxiety disorder, that has been exacerbated by the pandemic, employers can ask questions to determine whether the condition is a disability and discuss accommodations.
• Employers do not necessarily have to postpone requests for an employee with a disability for an accommodation that will not be needed until he returns to the workplace, when mandatory telework ends.
• Employees who already receive a reasonable accommodation before the pandemic may be entitled to an additional or altered accommodation, absent undue hardship.
   

Updated OSHA Guidance on Reporting Workplace Transmissions

On April 10, the DOL’s Occupational Safety and Health Division (OSHA) issued an interim enforcement memo walking back its previous enforcement guidance on reporting of workplace transmissions for some employers, available here.

Under OSHA’s recordkeeping requirements, COVID-19 is a recordable illness, and employers are responsible for recording cases of COVID-19, if the case:

1. Is confirmed as a COVID-19 illness;
2. Is work-related as defined by 29 CFR 1904.5; and
3. Involves one or more of the general recording criteria in 29 CFR 1904.7 (including death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or loss of consciousness, or a significant injury or illness diagnosed by an authorized health care provider even if it does not result in death, days away from work, restricted work or job transfer, medical treatment beyond first aid, or loss of consciousness).
    

OSHA’s guidance recognizes that employers “may have difficulty making determinations about whether workers who contracted COVID-19 did so due to exposures at work.”Therefore, OSHA will not enforce its recordkeeping requirements to require these 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.”

This waiver of enforcement does not apply to employers in the healthcare industry, emergency response organizations (e.g., emergency medical, firefighting and law enforcement services), and correctional institutions in areas where there is ongoing community transmission. These employers must continue to make work-relatedness determinations.

Hurwitz & Fine continues to monitor and analyze these updates and advise employers on matters related to the coronavirus outbreak.  Please contact any member of the firm’s Labor & Employment team for guidance on these evolving issues at 716-849-8900, by e-mail, or visiting our website at www.hurwitzfine.com