Please see below for the full excerpt of “No One-Size-Fits-All Rules for Business in the Pandemic,” which was contributed to The Texas Lawbook on July 23, 2020. This article has been reprinted with permission from the Lawbook.
Jackson Walker partners Sarah Mitchell Montgomery and Brad Nitchke recently participated in a webinar with Lockton Companies’ Chief Medical Officer, Shealynn Buck, MD, to discuss managing workplace medical and legal risks when returning employees to work amid the COVID-19 pandemic. To watch the webinar and view the transcript, view the article “Keeping the Doors Open: Managing Workplace Medical and Legal Risks in the Pre-Vaccine Era.”
In the four months since public health orders around the state began to disrupt business as usual, Texas businesses have been forced to learn the ins and outs of an ever-changing web of state, local and federal regulations. From widespread shutdowns to a statewide reopening followed by targeted operational rollbacks, knowing whether and how a business can operate has been a moving target.
As most businesses across the state are now allowed to operate at some level, the focus of many employers has shifted to wondering how they can do so safely while minimizing the risks of costly and unanticipated litigation down the road.
Unfortunately, there is no one-size-fits-all guidance for businesses struggling to reopen while keeping their workforces safe and managing relationships with customers, vendors and other third parties. But there are some common threads to the questions Texas businesses and other employers are asking, and there are some general principles that tend to guide the decisions they are making.
Maybe now more than ever, it’s important to have a legal advisor who is also a business advisor and capable of providing pragmatic guidance based on each business’s situation. Here are some of the types of questions businesses are asking, and some of the legal and practical issues they may want to consider.
What am I allowed to ask of my employees regarding their health?
Employers asking this question are often concerned about two issues: the Americans with Disabilities Act and employee privacy concerns. The good news is that the EEOC has already determined that the ADA doesn’t prevent screening for COVID-19. Because the EEOC views the virus as presenting a “direct threat” to workplace safety, the agency’s recent guidance says that employers may conduct employee COVID-19 screenings, including temperature checks and symptom questionnaires.
As for employee privacy concerns, employers should keep confidential all employee health information—including information gleaned during COVID screenings—and only allow the information to be accessed by employees with a specific need to know it. To ensure that these practices are applied clearly and consistently, employers should consider setting out their expectations in written policies that are made available to all affected employees, who should read and sign an acknowledgement of receipt.
What if an employee tests positive for COVID-19? Do I tell the employee’s co-workers?
As infection numbers rise in many parts of the state, this is a question we’re hearing more and more from employers. Generally speaking, if an employer learns that an employee has potentially been exposed to COVID-19 in the workplace—through close contact with a co-worker or other person who has tested positive for COVID-19 or is presumed to have COVID-19—there are good reasons to tell the employee about the exposure.
First, if an employee has been in close contact with someone who has COVID-19, it’s important that that person knows so that appropriate steps can be taken to minimize the chances of infecting others. Second, OSHA considers a workplace COVID-19 infection to be a reportable event, so the employer may have a legal obligation to report the exposure to OSHA.
As with other employee health information, confidentiality is important here, so an employer generally should not identify the COVID-positive employee to co-workers or others. Instead, the employer should tell affected employees that a co-worker with whom they may have had close contact—defined by the CDC as spending 15 minutes within six feet of another person—has tested positive or is presumed to have COVID-19 based on symptoms.
An employee took part in a large protest but has no symptoms. I’m concerned the worker could have been exposed to the virus. May I require the worker to self-isolate for 14 days?
Generally speaking, businesses have the right to require employees to report high-risk activities, such as participation in group events, but it’s critical that employers do so in a way that does not single out individuals or groups, such as those of a particular age, race or national origin. Similarly, employers should use caution with singling out only certain types of group events for classification as high risk.
As a best practice, employers should strive to implement neutral policies that will provide the most protection for their workforce. It’s often helpful to have a written policy in place that clearly communicates the employer’s practices and expectations and sets out how the policy will be applied across the workforce, without regard to an employee’s membership in a protected class or engagement in a particular activity.
What is my duty to inform customers that an employee has tested positive?
Texas law generally doesn’t require all businesses to inform customers every time an employee tests positive for COVID-19. However, there may be instances in which a business decides that notifying some or all customers is a good idea, either to manage the risk of downstream litigation or to protect customer relationships and business continuity.
We see businesses taking a close look at customer notification, especially in the case of an employee who is in close contact (within six feet for 15 minutes or longer) with customers. Also, the CDC has published a pretty comprehensive set of decontamination guidelines that businesses should review. If a business determines that it needs to temporarily close to implement those guidelines because of an employee exposure, some level of customer communication may be helpful as a practical matter. Businesses have also asked how to communicate that a high-profile or key employee will be absent for an extended period because of a confirmed or suspected COVID infection.
Each of these situations raises competing concerns of employee privacy and the need to maintain business operations, and the affected business should discuss the details of each situation with an attorney who is experienced in this area. But just as important as seeking advice about a particular situation is the need to plan ahead. The public health authorities seem to agree that COVID-19 will be with us for the time being, and businesses that are able to do so should work with their risk management, human resources and legal advisors now to plan a response to these and other COVID-related scenarios.
What flexibility do I have in screening third parties, such as customers, contractors or vendors who regularly visit our workplace?
Every business is different, and screening visitors to a site may make sense for some businesses that want to do it, but it may present insurmountable practical challenges for others. Right now, there’s no statewide requirement for all businesses to do this, although the Department of State Health Services reopening guidelines do recommend that certain types of businesses consider screening customers, especially when those customers will be in close contact with employees.
For those considering a third-party screening program, some important considerations include: (1) determining whether existing contracts (such as leases or vendor agreements) allow the business to screen the parties to those contracts or need to be revised to allow for screening; (2) implementing a screening program in a consistent way that does not discriminate against members of a protected class; (3) responding consistently when met with either an objection to screening or a screening result that bars a person from entering; (4) whether local public health orders require or prohibit third-party screening; and (5) for businesses that are public accommodations, addressing the concerns of persons with disabilities who may be subject to the screening program. As with employee screening, drafting a thoughtful third-party screening policy with the help of your attorney now can help sort out a lot of these issues before a business is faced with a challenging situation.
What if a repairman or other contractor at my business advises he has tested positive for COVID-19?
Practically speaking, and depending on the current public health guidance, an organization in this situation will want to do some contact tracing, to the extent that’s possible, to determine the potential impact on its employees and others.
Legally, the organization will probably want to review its contract with the contractor to determine whether an indemnity agreement may require the contractor to cover any costs associated with the potential exposure, or whether insurance is available that might help address those costs. If such an agreement exists, it will be important for the organization to carefully review and comply with any notice requirements in the agreement to avoid potentially losing certain rights.
For more detailed information, please visit OSHA’s “Guidance on Returning to Work” and the EEOC’s publication “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act” and guidance “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.”
Brad Nitschke is a partner in the Trial and Investigations & White Collar Defense practices and the Chair of Jackson Walker’s COVID-19 Task Force. From the outset of an engagement, Brad works with clients to define the challenge at hand, identify the goal, and chart a course to the client’s desired end result, working within the framework of the client’s mission, financial and operational needs, and internal and external reputation. He has tried cases to verdict in state and federal courts, and has particular experience in investigations and crisis response involving allegations of sexual misconduct, financial improprieties, and healthcare fraud and abuse. His extensive experience in these areas also equips him to work with proactive clients who want to identify areas of potential exposure and develop policies and practices to help minimize future risk before a problem arises.
Sarah Mitchell Montgomery is an employment law attorney with substantial experience representing employers and management in complex cases involving employment discrimination, retaliation and unfair practices and related workplace and business disputes. Sarah regularly assists clients on challenging work-related issues, including high risk discipline and termination scenarios, managing leaves of absence, navigating issues raised by Title VII, the FMLA, the ADA, the ADEA, USERRA and workers’ compensation statutes, investigating allegations of harassment and discrimination, drafting and updating affirmative action plans, and creating and implementing effective and compliant employee-related policies and procedures.
The opinions expressed are those of the authors and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for informational purposes only and does not constitute legal or medical advice.