July 14, 2020
Three-Month Waiver in Response to the Economic Consequences of the COVID-19 Public Health Emergency
To relieve employers of commercial motor vehicle drivers subject to 49 CFR Part 382 from certain pre-FMCSA grants, a three-month waiver from certain pre-employment testing requirements applicable to employers of drivers subject to 49 CFR part 382. This action responds to the President’s Executive Order No. 13924, Regulatory Relief to Support Economic Recovery, issued on May 19, 2020, related to the economic consequences of the Coronavirus Disease 2019 (COVID-19) public health emergency. The waiver is effective June 5, 2020, and ends on September 30, 2020.
Workplace Antibody Test Can’t Be Required EEOC Says
Federal disability law doesn’t allow employers at this time to require coronavirus antibody testing before employees return to work, according to the Equal Employment Opportunity Commission. The civil rights agency’s latest guidance falls in line with advice from the Centers for Disease Control and Prevention, which had said the tests shouldn’t be used to “make decisions about returning persons to the workplace.” The presence of antibodies in a test can’t be equated with a worker’s immunity from COVID-19, the CDC guidance said.
The EEOC has, however, allowed employers to test workers for COVID-19 under the Americans with Disabilities Act. If an employer requires a mandatory medical evaluation of an employee, the ADA says it must be “job related and consistent with business necessity.” The EEOC has said that because an individual suffering from the virus poses a “direct threat” to the health of others in a workplace, COVID-19 tests meet that requirement under the ADA.
“Please note that an antibody test is different from a test to determine if someone has an active case of COVID-19 (i.e., a viral test),” the agency said in its updated guidance, released Wednesday. The agency said it “could update this discussion in response to changes in CDC’s recommendations.”
EEOC Provides Return-to-Work and COVID-19 Antibody Testing Guidance Under Federal Civil Rights Laws
As the nation continues the gradual reopening of workplaces and the economy, the U.S. Equal Employment Opportunity Commission (EEOC) has updated its guidance to provide information to employers regarding their responsibilities under federal civil rights laws. The EEOC has been updating this guidance on a rolling basis since March. Key takeaways from its most recent updates address:
While the EEOC has previously expressed its view that temperature checks and screening for the COVID-19 virus are permissible under the Americans with Disabilities Act (ADA), employers must ensure that such tests are administered in a non-discriminatory way, and the results of such tests be maintained as confidential employer medical records segregated from an employee’s regular personnel file. Most recently, on June 17, 2020, the Agency made clear its view that tests for the presence of the coronavirus itself are permissible under the ADA, as the presence of the virus can indicate that the employee is a direct threat to others in the workplace. At the same time, the updated guidance expresses the EEOC’s view that tests for the presence of coronavirus antibodies are not permissible under the ADA as a screening tool to determine whether employees are allowed to return to work. The EEOC noted that its position is in line with the Centers for Disease Control’s position, but that its position may change in the future if the CDC’s position does. Finally, the guidance makes clear that under the ADA, as well as Title VII of the Civil Rights Act of 1964, an employee who requests an alternative means of screening due to a health or medical condition, or for religious reasons, may be entitled to reasonable accommodation, and employers should view a request for a different means of testing as a request for such accommodation (which may or may not be provided, depending on the burden on the employer in providing an alternative method of screening).
Pregnant and Older Workers
The EEOC’s updated guidance reminds employers that under the Age Discrimination in Employment Act (ADEA) and Pregnancy Discrimination Act (PDA), an employer may not exclude older or pregnant workers from the workplace because of their age or pregnancy, despite the fact that these individuals may be at higher risk of serious illness from COVID-19. This is true even if the employer is acting in what it thinks is the employee’s best interests. The EEOC makes equally clear, however, that employers are free to accommodate requests from older or pregnant workers for flexibility with respect to returning to the workplace, so long as it does so in a consistent and non-discriminatory manner. The takeaway, however, is that an employer may not systematically exclude them.
ADA/Employees With Higher-Risk Family Members
The EEOC’s updated guidance also makes clear that an employer is not required to provide reasonable accommodation to an employee without a disability, even where, for example, the employee without a disability requests a reasonable accommodation to avoid exposing a family member who is at higher risk of severe illness from COVID-19 due to an underlying medical condition or disability. Again, however, the Agency notes that employers are free to provide workplace flexibility beyond what the law requires (e.g., choosing to allow an employee to continue to telework to avoid exposing a vulnerable family member), but cautions that an employer that does so should be careful to not do so on a discriminatory basis.
COVID-19 Antibody Testing: Useful Screening Tool or Impermissible Medical Examination?
As the United States still struggles with testing capacity for active COVID-19 infections, employers are increasingly asking “may we require our employees be tested for the presence of COVID-19 antibodies?” This is particularly true following the Equal Employment Opportunity Commission’s position that employers were permitted to test for the presence of active COVID-19 infection, set forth in its What You Should Know About COVID-19 resource (Q&A 6).
Antibody testing is appealing because there is widespread availability on the private market, and employees do not need to satisfy certain screening criteria before receiving a test, unlike tests for active COVID-19 infection. If an employee has the antibodies for COVID-19, that means the employee was presumed to have had COVID-19 at some point in the past. According to the CDC, antibodies develop between 1-3 weeks after infection. A positive antibody test does not indicate the presence of an active infection.
The hope with COVID-19 is that antibodies will confer some immunity for some period of time. In the employment context, the appeal of using antibody testing is that employers and employees can feel safer with an employee who has antibodies being back in the workplace. Perhaps even those with antibodies are placed in a more public-facing role with the notion they cannot contract COVID-19 again. However, this is, after all, the “novel coronavirus” and there are many things scientists simply do not yet know about the disease.
A primary concern about antibody testing is the tests themselves are of varying reliability. Originally, not all tests that are offered on the private market were authorized by the FDA (the FDA has since ordered those tests off of the market). The tests that have been authorized by the FDA were granted emergency use authorization (EUA). EUA status may be given by the FDA Commissioner to allow unapproved products to be used in an emergency to diagnose, treat, or prevent serious or life-threatening diseases or conditions when there are no adequate, approved, and available alternatives. Although the FDA has authorized use of some antibody tests, it has not independently validated any of them.
This leads to the CDC’s recently issued interim guidance on antibody testing, which severely undermines the assumption of immunity: “We currently don’t have enough information yet to say whether someone will definitely be immune and protected from reinfection if they have antibodies to the virus.” The CDC also expressly stated “Serologic test results should not be used to make decisions about returning persons to the workplace.” This is hardly a ringing endorsement for mandating antibody testing.
All of this brings us back to the initial question—“may we require our employees be tested for the presence of COVID-19 antibodies?” Let’s turn back to the EEOC FAQ on testing, which only expressly approves of testing for the active presence of COVID-19 virus and is silent on antibody testing. This portion of the EEOC’s response is illustrative:
Consistent with the ADA standard, employers should ensure that the tests are accurate and reliable. For example, employers may review guidance from the U.S. Food and Drug Administration about what may or may not be considered safe and accurate testing, as well as guidance from CDC or other public health authorities, and check for updates. Employers may wish to consider the incidence of false-positives or false-negatives associated with a particular test. Finally, note that accurate testing only reveals if the virus is currently present; a negative test does not mean the employee will not acquire the virus later.
What does this all mean for employers? Under the Americans with Disabilities Act, all mandatory employee testing must be job-related and consistent with business necessity. The EEOC has concluded that because COVID-19 presents a “direct threat” in the workplace, employers may test for the presence of an active infection. By contrast, antibody tests do not detect active infection and therefore do not aid in preventing the spread of COVID-19 in the workplace. In addition, the reliability of the antibody tests themselves is problematic. Thus, antibody tests do not appear job-related and consistent with business necessity and would likely be viewed as an impermissible medical inquiry—not to mention the potential claims that could arise should employers take employment actions (reassignment, reduction in hours, or loss of overtime, for example) based upon the results of the testing.
As scientists learn more about what the presence of COVID-19 antibodies mean for immunity, and as antibody testing becomes more reliable, it is certainly possible antibody testing may become a permissible medical examination. For now, employers should think twice before mandating antibody testing.
EEOC Says You Don’t Have to Accommodate Employee Concerns About Family Members & COVID-19
The EEOC supplemented its guidance today on the ADA, reasonable accommodations and COVID-19. The new guidance adds several Q&As on accommodation, including whether employers must accommodate employee concerns about returning to work when the employees live with family members who are at risk of more serious illness from COVID-19. The EEOC believes no accommodation is required for such employees.
The new guidance also addresses several hot topics, such as whether employers may lawfully exclude pregnant or older employees (aged 65 or older) from the workplace (no), whether employers may treat employees age 65 or older better than employees aged 40 to 64 (yes), how employers should address race-based harassment for employees of Asian descent, the sex discrimination considerations for caregiver policies, and how employers can begin discussing necessary accommodations for employees at higher risk of severe illness before the workplace is scheduled to open. Read the supplemental guidance here.
Overview of Recent Updates for Employers in the Commercial Trucking Industry
The COVID-19 pandemic has highlighted the central role local and long-haul trucking companies and drivers play in the overall U.S. economy and specifically our public health infrastructure. Now, as states and businesses around the country gradually reopen and truck deliveries begin to ramp up, employers in the commercial trucking industry should be aware of recent changes to Hours of Service regulations as well as COVID-19-related guidance on keeping employees and the general public healthy and safe. By updating their policies and procedures and enacting responsible safety measures, motor carriers will be in the best position to weather the storm of this pandemic and avoid the risks associated with employment litigation and compliance pitfalls.
The Federal Motor Carrier Safety Administration (“FMCSA”), which falls under the United States Department of Transportation (“DOT”), is responsible for developing and enforcing Hours of Service (“HOS”) regulations for the trucking industry. HOS regulations limit when and how long an individual may drive in order to reduce the possibility of driver fatigue. The existing HOS regulations for property-carrying vehicles under 49 C.F.R. § 395.3 are as follows:
For HOS regulations to apply, the driver’s property-carrying commercial motor vehicle must (1) be used on public highways in interstate commerce and (2) meet certain gross vehicle weight standards. According to the FMCSA, commercial trucking employers who meet those requirements do not need to comply with state meal and rest period laws because the HOS regulations preempt state law. This is particularly significant for motor carriers who operate in California. While the Ninth Circuit Court of Appeals has yet to weigh in on the FMCSA’s December 2018 Preemptive Determination with respect to California’s meal and rest period requirements under the Labor Code and Industrial Welfare Commission Wage Order 9, thus far district courts in California have upheld the FMCSA’s decision.[i] A ruling from the Ninth Circuit is anticipated later this year.
Given the preemptive effect of the FMCSA’s HOS regulations, modifications to existing regulations are significant because they impact tens of thousands of truck drivers throughout the country—including employee drivers as well as independent owner/operator drivers. As discussed below, in recent months HOS regulations have undergone both temporary and permanent changes, all which will have a significant impact on the transportation business for years to come.
Temporary Changes to Hours of Service Regulations
In response to the ongoing pandemic, the FMCSA issued a National Emergency Declaration for commercial motor vehicles delivering relief during the first few months of the COVID-19 pandemic. The FMCSA issued Emergency Declaration No. 2020-002 on March 13, 2020, and recently extended and expanded its relief through June 14, 2020. Under the emergency declaration, motor carriers and drivers providing “direct assistance in support of relief efforts related to the COVID-19 outbreak” are granted emergency relief from Parts 390 through 399 of the FMCSRs. Consequently, HOS regulations for property-carrying vehicles under 49 C.F.R. § 395.3 have been suspended when motor carriers and drivers are providing “direct assistance in support of relief efforts.” The suspension of HOS regulations permits drivers to operate a commercial vehicle for longer than eleven hours without needing to take the required ten consecutive hours off duty. That being said, drivers who inform carriers that they require immediate rest shall be given at least ten consecutive hours off before the drivers are required to return to service.
Emergency Declaration No. 2020-002 covers transportation to meet immediate needs for:
Notably, “direct assistance” does not include routine commercial deliveries, including truck loads mixed with a nominal amount of qualifying emergency relief added simply to obtain the benefits of the emergency declaration.
California Governor Gavin Newsom signed a similar order, Executive Order N-31-20, that also permits drivers to exceed the hours of service limits specified in California Vehicle Code section 34501.2 and California Code of Regulations, Title 13, section 1212.5. California’s waivers are in effect for the duration of the FMCSA’s Emergency Declaration 2020-02.
The FMCSA took the position that the most recent extension occurred because the COVID-19 national emergency remains in place. It therefore appears likely that Emergency Declaration 2020-02 will be extended again if the President’s national emergency declaration continues through June.
Permanent Changes to Hours of Service Regulations
In a ruling unrelated to COVID-19, the FMCSA announced on May 14, 2020, that it finalized permanent changes to its HOS regulations. The ruling comes nearly two years after the FMCSA first issued an advanced notice of proposed rulemaking in August 2018, seeking public input on potential revisions to certain HOS provisions. After receiving over 5,000 comments, the FMCSA proposed detailed changes back in August 2019, and received an additional 2,800 comments during the subsequent comment period. The new HOS regulations will become effective 120 days after publication in the Federal Register, likely making them effective in September of 2020.
The new final rule relaxes the 30-minute rest break requirement in two substantial ways. First, the 30-minute period is now referred to as a “non-driving interruption” that “may be satisfied by any non-driving period of 30 minutes, i.e., on-duty, off-duty, or sleeper berth time.” Accordingly, drivers can be expected to remain on-duty and perform nondriving tasks like completing paperwork, planning routes, or refueling their trucks during the required 30-minute period. Second, the 30-minute “break” is now only mandatory if the driver has actually been driving for eight hours straight, not just the period of time the driver is on duty. In other words, drivers who do not drive for eight hours straight are not entitled to a 30-minute rest break under the new rule.
Although the final rule also contained modifications to the short-haul trucker exemption, sleeper-berth exception, and adverse driving conditions exception, the 30-minute rest break changes are certainly the most significant. As noted above, the Ninth Circuit Court of Appeals has not addressed the recent FMCSA’s Preemption Determination. Until the Ninth Circuit provides greater clarity on this important issue, motor carriers with employee drivers in California should consult with counsel before relaxing meal period and rest break policies.
Safety and Health Guidance Related to COVID-19
Thanks to COVID-19, employers throughout the country have become more familiar with the federal Occupational Safety and Health Administration (“Fed/OSHA”) and Fed/OSHA-approved State Plans like California’s Division of Occupational Safety and Health (“Cal/OSHA”) (collectively “OSHA”) that enforce an employer’s responsibility to protect the health and safety of their employees. Much of the guidance issued by OSHA during the ongoing COVID-19 pandemic has originated from guidance from the United States Centers for Disease Control and Prevention (“CDC”). The CDC’s guidance ranges from general industry guidance applicable to all employers to industry-specific guidance that addresses infection hazards specific to workplaces within an industry.
In recent guidance, the Centers for Disease Control and Prevention (“CDC”) identified infection prevention control measures that employers with long-haul drivers (and presumably short-haul drivers) should consider adopting. Note that unless required by the federal Occupational Safety and Health Administration (“OSHA”), a state-approved OSHA plan (e.g. Cal/OSHA), or other state regulations or ordinances, CDC recommendations are not compulsory on employers. The CDC’s guidance identified the following potential sources of COVID-19 exposure for drivers: (1) close contact with truck stop attendants, store workers, dock workers, other truck drivers, or others with COVID-19, and (2) drivers touching their nose, mouth, or eyes after contacting surfaces touched or handled by a person with COVID-19. The CDC also advises commercial trucking employers to make a plan to handle the unique COVID-19 related complications drivers face, including for example, what to do if a driver becomes sick or tests positive for COVID-19 while on the road. The CDC recommends that the plan address where to stop, where and how to seek medical advice and treatment, and plans for freight delivery.
The CDC further recommends that drivers practice social distancing in the following manner:
The CDC also recommends employers establish cleaning and disinfecting procedures for the following frequently touched surfaces on a routine basis:
As for training drivers on proper hand hygiene, the CDC recommends that drivers wash/sanitize their hands at the following times:
The CDC also recommends employers do the following:
Employers should also monitor guidance from Fed/OSHA and State Plans where applicable. For example, recent guidance from Cal/OSHA identifies COVID-19 infection control prevention measures that are mandatory for all California employers to include in their written Injury and Illness Prevention Program where generally applicable. In addition, employers should consult any health and safety guidance their state issues in conjunction with phased reopening plans, some of which may be industry-specific, such as California’s reopening guidance that covers delivery services and logistics/warehousing facilities and mentions drivers’ interactions at ports or manufacturing facilities.
OSHA Issues Updated COVID-19 Guidance for Construction Industry Employers
On May 27, 2020, the Occupational Safety and Health Administration (OSHA) updated its guidance for employers performing construction work of all types. The agency’s guidance is not a standard or regulation, so it is not legally binding. Nonetheless, construction industry employers may want to consider OSHA’s recommendations when developing and updating their workplace safety and health plans, for two reasons. First, the guidance indicates which measures OSHA might allege are required by the Occupational Safety and Health Act’s General Duty Clause, just as it has done with heat stress, workplace violence, and other hazards for which it has no specific standard. Second, the document may indicate what employees may expect their employers to do as more people get back to work.
OSHA recommends that employers assess hazards, evaluate risks, and implement controls based on the four exposure risk levels OSHA has used for all of its COVID-19-related guidance and recommendations. Notably, OSHA indicates that the “Very High” risk level is “not applicable for most anticipated work tasks” in the industry. The “High” risk level is for tasks requiring workers to enter “an indoor site occupied by people such as other workers, customers, or residents suspected of having or known to have COVID-19,” such as a nursing home or other healthcare facility. The “Medium” risk level is for “tasks that require workers to be within 6 feet of one another” or “customers, visitors, or members of the public.” Finally, the “Lower” risk level covers tasks that “allow employees to remain at least 6 feet apart and involve little contact with the public, visitors, or customers.” So OSHA primarily, but not exclusively, recommends reduced contact and proximity to others. OSHA recommends—but, again, does not require—that employers conduct a job hazard analysis (JHA) focused on the specific risk level of the analyzed tasks.
Indoor Construction Environments with High Risk of Exposure
OSHA’s guidance focuses primarily (but not exclusively) on indoor construction environments in the High-risk level. For engineering controls, OSHA recommends using physical barriers, such as closed doors, walls, or even plastic sheeting barriers.
OSHA emphasizes that employers should use engineering controls so that employees need not be required to use N95 respirators and other personal protective equipment (PPE). As an example of engineering controls, OSHA mentions “water delivery or dust collection systems that will further reduce ambient dust when cutting, breaking, jackhammering, or drilling.” OSHA does not, however, make such a recommendation for outside construction environments or even indoor environments not in the High-risk level.
For administrative controls, OSHA recommends employers use questions for screening work assignments when “scheduling indoor construction work to assess potential exposures and circumstances” before sending workers inside. OSHA recommends employers first ask if the work is “essential, urgent, or emergency work,” and if so, use a JHA to determine how to best minimize exposure.
If workers must enter home environments or areas where construction is ongoing in occupied buildings, OSHA recommends implementing standard operating procedures and employee training. Those procedures could include requesting any quarantined or isolated nonworkers (i.e., residents) to remain physically separated from workers, asking residents to communicate with workers remotely instead of in person, and asking residents to wear face coverings. OSHA also recommends taking measures to ensure that indoor working areas have adequate air flow.
Training for Construction Workers
OSHA recommends that construction workers be trained on COVID-19-related topics, such as:
The amount of training an employer should do for a particular job site or task will depend on the prior determination of the risk level. OSHA’s guidance indicates that employees in occupied indoor worksites will require broader training.
Cloth Face Coverings in Construction?
OSHA clarified in bold type that “Cloth face coverings are not PPE,” and “[t]hey are not “appropriate substitutes for PPE,” such as N95 respirators or medical face masks. This is important because it relieves employers of any requirement to conduct written worksite assessments and training for face coverings, which would be required of any PPE. The agency recommends face coverings as a public health measure and notes that cloth face coverings protect other people, not the wearer. But OSHA does not require their use on a construction site. As OSHA’s guidance reminds, when a respiratory hazard exists, employers must comply with OSHA’s Respiratory Protection standard (29 C.F.R. Section 1910.134).
Other Safe Work Practices
OSHA’s updated guidance also recommends employers consider a wide range of other safe work practices, such as screening all visitors; adopting staggered work schedules; identifying “choke points where workers are forced to stand together”; “implement[ing] policies to maintain social distancing”; coordinating site deliveries to minimize contact and requiring delivery personnel to remain in their vehicles, if possible; implementing “a rigorous housekeeping program to reduce dust levels”; and minimizing in-person meetings of all types, such as toolbox talks and safety meetings.
OSHA’s updated construction guidance provides far greater detail and recommendations than the agency’s initial attempt. Although much of the content is specifically directed toward construction work occurring indoors, construction employers of all types are likely to find the recommendations useful. As with all workplace hazards, assessment, abatement, engineering and physical controls, training, and work practice controls are key safety elements.
Updated CDC Guidance: COVID-19 Employer Information for Office Buildings
Last week, the Centers for Disease Control and Prevention (the “CDC”) issued updated guidance detailing steps employers and office building managers should take prior to reopening. This guidance follows the beginning stages of most states’ business reopening efforts. The guidance focuses on four major topics: Evaluation of the Workspace, Assessment of Risk, Implementation of Workplace Controls, and Education. In short, the guidance encourages employers to evaluate and address potential COVID-19 related hazards and provides steps businesses can take to minimize exposure or transmission once their doors are opened. This new guidance echoes and supplements the CDC’s previous interim guidance as well as OSHA guidance, particularly with respect to the implementation of hazard controls. We summarize significant portions of the CDC’s updated guidance below:
Key Information for Office-Based Employers – Creation and Implementation of COVID-19 Workplace Health and Safety Plan
All employers are encouraged to develop a COVID-19 workplace health and safety plan in order to protect both employees and visitors (i.e. clients or customers). The CDC encourages employers to implement and update as necessary a plan specific to its workplace, which identifies all areas and job tasks with potential exposures to COVID-19 and includes control measures to eliminate or reduce such exposures. This plan should be in accordance with applicable state and local orders, OSHA guidance, and other applicable agency guidance. The CDC refers employers to its CDC Interim Guidance for Businesses and Employers for guidelines and recommendations on creating a plan.
Evaluation of Offices and Buildings
Prior to reopening offices to employees, the CDC recommends employers (and building management) evaluate whether the building is “ready” for reentry and occupancy. This involves checking heating, air flow or ventilation, and air conditioning systems; ensuring the system(s) are working properly; and increasing circulation of outdoor air where possible. In addition, employers should verify any other systems (e.g., mechanical and life safety systems) are operational, and no other hazards associated with unoccupied buildings exist (e.g., rodents, mold, or stagnant water).
Assessment of Risk
Employers should conduct a “thorough hazard assessment” of the office to identify where and how employees could potentially be exposed to COVID-19 in the office or office building (e.g., common areas or break rooms). Depending on the assessed risk of exposure or transmission, the employer should consider implementing various safety measures and workplace controls.
Implementing Workplace Controls
In line with OSHA’s Guidance (and as discussed in parts two and three of our COVID-19 Roadmap Series), the CDC suggests developing hazard controls using the “hierarchy of controls,” including: engineering controls to isolate workers from hazards (e.g., taking steps to reconfigure workspaces and physically separate employees to allow for social distancing or improving ventilation) and administrative controls to modify or change how individuals work (e.g., encouraging employees who are sick to stay home; screening employees prior to entry into the workplace; requiring facial coverings; providing incentives for employees who regularly use public transportation).
Education of Employees and Supervisors
The CDC’s updated guidance continually stresses the importance of communication with employees and other workplace constituents regarding actions the employer is taking to protect its employees and reduce the risk of exposure or transmission. These communications (including posters and notices) should be frequent and easy to understand. Topics employer should cover include: symptoms of COVID-19, staying home when sick, social distancing, hygiene protocols, masks and personal protective equipment (“PPE”), and best practices for minimizing transmission in the workplace (as well as outside of work).
At a minimum, the CDC’s updated guidance reiterates the importance of employer preparedness, hygiene protocols, and communications with employees in order to keep them apprised of the steps being taken to protect them. While the CDC’s guidance is not binding, it is a valuable resource for employers looking to protect their workforce as they return to the office and those seeking to update or improve their COVID-19 workplace plans. Employers should also be aware that multiple states’ reopening requirements (for example, those recently issued in California, Massachusetts, and New York) either require or recommend that businesses comply with the CDC’s guidance.
OSHA Updates Its COVID-19 Recordkeeping Guidance, Giving Employers Helpful Guardrails
COVID-19 has reached virtually the entire country, and both employers and employees in a broad range of industries have experienced outbreaks. At the same time, the government and private sector continue to take steps to slow the virus’s spread and protect employees while adapting to the new business environment. In recognition of the unique challenges posed by COVID-19, the Occupational Safety and Health Administration (OSHA) is applying updated guidance in an effort to provide additional clarity to employers and workers.
On May 26, 2020, OSHA issued updated guidance concerning employers’ recordkeeping responsibilities with respect to employee COVID-19 cases. Under OSHA’s general recordkeeping requirements, employers would be responsible for recording cases of COVID-19 if: (1) the case is confirmed as a case of COVID-19; (2) exposure in the work environment caused or contributed to the illness; and (3) the infection results in death or significant injury, time off work, restricted work or transfer to another job, medical treatment beyond first aid, or loss of consciousness. However, in recognition that it remains difficult to determine whether a COVID-19 illness is work-related, OSHA is exercising its enforcement discretion to articulate and enforce specific recordkeeping requirements for such illnesses.
In determining whether an employer has complied with its obligations to make a reasonable determination of work-relatedness, OSHA will consider the reasonableness of the employer’s investigation, the evidence available to the employer, and the evidence that COVID-19 was contracted at work. Per the May 26 enforcement memorandum, it is sufficient for an employer, once it learns of an employee’s COVID-19 illness, to: “1) ask how the employee believes he/she contracted the illness; 2) while respecting employee privacy, discuss the employee’s work and out-of-work activities that may have led to the illness; and 3) review the employee’s work environment for” potential exposure. The evidence considered should be the information reasonably available to the employer — if the employer later learns more information, that information should be factored into the determination as well. There is no formula to determine work-relatedness, but OSHA has specifically identified certain evidence with respect to determining whether a case is/is not work-related:
OSHA has noted that its inspectors “should give due weight to any evidence of causation, pertaining to the employee illness, at issue provided by medical providers, public health authorities, or the employee” herself/himself.
If, after a reasonable and good-faith inquiry, the employer cannot determine whether it is more likely than not that exposure in the workplace played a “causal role” with respect to a particular case of COVID-19, then the employer need not record that illness. For cases that are deemed to be work-related, employers should take note, however, that because COVID-19 is an illness, if an employee voluntarily requests that his or her name not be recorded, the employer must comply.
OSHA’s guidance is intended to be time-limited to the current COVID-19 public health crisis, and employers should continue frequently checking OSHA’s webpage for updates. Finally, OSHA notes that “it is important as a matter of worker health and safety, as well as public health, for an employer to examine COVID-19 cases among workers and respond appropriately to protect workers, regardless of whether a case is ultimately determined to be work-related.”
COVID-19: OSHA Issues Updated Guidance on Wearing Masks in the Workplace
The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has published a series of frequently asked questions and answers regarding the use of masks in the workplace.
The new guidance provides answers to the frequently asked questions of:
1. What are the differences between cloth face coverings, surgical masks and respirators?
2. Are employers required to provide cloth face masks to workers? NO.Cloth face coverings are not considered personal protective equipment (PPE) and are not intended to be used when workers need PPE for protection against exposure to occupational hazards. As such, OSHA’s PPE standards do not require employers to provide them.
3. Should workers wear cloth face masks while at work? YES
4. If workers wear cloth face masks at work, should employers still look to ensure some level of social distancing? YES
5. How am I supposed to keep my cloth mask clean? See attached suggested procedures from the CDC—https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/diy-cloth-face-coverings.html.
6. Are surgical masks or cloth face masks acceptable respiratory protection in the construction industry when respirators would be need but are not available? NO. Employers should not be using surgical masks or cloth face coverings when respirators are needed.
In general, employers should always rely on a hierarchy of controls that first includes efforts to eliminate or substitute out workplace hazards and then uses engineering controls (e.g., ventilation, wet methods), administrative controls (e.g., written procedures, modification of task duration), and safe work practices to prevent worker exposures to respiratory hazards, before relying on personal protective equipment, such as respirators. When respirators are needed, OSHA’s guidance describes enforcement discretion around use of respirators, including in situations in which it may be necessary to extend the use of or reuse certain respirators, use respirators beyond their manufacturer’s recommended shelf life, and/or use respirators certified under the standards of other countries or jurisdictions.
For more information on this topic and the actual FAQs please go to https://www.osha.gov/SLTC/COVID-19/. Note that the OSHA guidance is NOT a standard or a regulation, rather it is advisory in nature and is intended to provide direction from OSHA.
CFPB Provides Additional Guidance on CARES Act Credit Reporting
On June 16, 2020, the Bureau of Consumer Financial Protection (CFPB) released a Compliance Aid in the Form of Ten FAQs (FAQs) on consumer reporting related to the CARES Act and the COVID-19 pandemic. The FAQs follow the Fair Credit Reporting Act (FCRA) Policy Statement issued by the CFPB on April 1 (the Statement). While the FAQs generally are consistent with the Statement, they also suggest a more aggressive enforcement posture. For instance, in the Statement, the CFPB indicated that it did not intend to cite in an examination or bring an enforcement action against a consumer reporting agency (CRA) or furnisher which makes good-faith efforts to investigate disputes as quickly as possible, even if they take longer than the statutory time frame. While not in direct contradiction to the Statement, the FAQs caution that the CFPB will not be providing CRAs or furnishers with unlimited time before taking action. Seven of the ten FAQs focus on accommodations made to consumers by creditors and how they affect reporting. For obligations or accounts that are current before the accommodation, furnishers must continue to report them as current. If an obligation or account is delinquent prior to the accommodation, furnishers must not advance the delinquent status. If a delinquency is brought current by the accommodation or by payments from the borrower, then the furnisher must report the credit obligation or account as current.
The FAQs also caution furnishers to ensure that all tradeline information is updated to accurately reflect that a consumer’s account is current consistent with the CARES Act. The FAQs also encourage furnishers to understand the data fields used by the CRAs to whom they report and reiterate that using a special comment code for disasters is not an adequate substitute for complying with these accommodation reporting requirements.
Finally, the FAQs state that forbearances should not be reported on accounts for which consumers neither have requested a forbearance nor are delinquent, and that the consumer reporting protections associated with accommodations continue to apply even after the accommodation ends. Unless a consumer fails to meet some payment requirements during the accommodation, a furnisher cannot report an account that was current prior to the accommodation as delinquent, nor can it advance the delinquency of an account for the time period during which there was an accommodation.
Why It Matters
The effects of COVID-19 on consumer credit are unfolding on a daily basis. The CFPB continues to protect consumers who are taking advantage of government-sponsored programs, and so are reminding CRAs and furnishers of their roles and responsibilities in responding to the pandemic. CRAs and furnishers should keep in mind that Compliance Aids are intended to provide practical advice and suggestions but are not binding like regulations and official interpretations.
Rhode Island Court Upholds “Reasonable Grounds” Drug Testing Even Where There Is Another Possible Explanation for Employee’s Behaviors
The Rhode Island Supreme Court affirmed the dismissal of a lawsuit against an employer who terminated an employee for refusing to submit to a reasonable suspicion drug test, even though the employee’s odd behaviors could have been attributable to pain or other things. Colpitts v. W.B. Mason Co., Inc., No. 2018-337-Appeal (R.I. May 29, 2020).
The plaintiff, Michael Colpitts, claimed that his former employer required him to take a drug test, allegedly without “reasonable grounds” as required by the Rhode Island drug testing law, R.I. Gen. Laws § 28-6.5-1(a)(1). That law permits testing when the “employer has reasonable grounds to believe, based on specific aspects of the employee’s job performance and specific contemporaneous documented observations, concerning the employee’s appearance, behavior or speech that the employee may be under the influence of a controlled substance, which may be impairing his or her ability to perform his or her job.”
Colpitts was employed as a supply delivery driver for W.B. Mason. He began using medical marijuana for pain as well as post-traumatic stress disorder in 2017, but he testified that he never used marijuana while working and never was impaired at work. He also did not disclose to his employer in 2017 that he had begun using medical marijuana. On March 5, 2018, Colpitts alleged that he injured his arm and back while effecting a delivery as part of his job. When he returned to the worksite and reported his injury, he was questioned by his supervisor and the branch manager. They determined that he might be impaired due to their observations that Colpitts: was stuttering and swearing excessively, was “jumping all over the place,” was confused and had difficulty describing his injuries, did not speak in complete sentences, was staggering and bending over, and stating “I’m f***ed up,” among other things. After his supervisor and branch manager advised Colpitts that he would have to go for drug testing, he insisted that he was “fine” and “got very agitated.” On the way to the collection facility, Colpitts disclosed that he used medical marijuana and that he would probably test positive for marijuana. Once he arrived at the collection facility, Colpitts refused to be drug tested but agreed to an alcohol test. The alcohol test was negative. His employment was terminated because he violated Company policy by refusing the drug test.
After a trial, the court ruled in favor of the employer, finding the employer’s witnesses to be credible and further finding that Colpitts’ “incoherent recitation,” “volatile behavior,” and “the use of profanity” was sufficient to support “reasonable grounds” for drug testing under Rhode Island law.
On appeal, Colpitts argued that there was no evidence that he was under the influence of drugs, and that his behaviors were due to the pain that resulted from his injuries. The Supreme Court held that the trial justice did not abuse her discretion in ruling in favor of the employer. Moreover, the Supreme Court did not agree with Colpitts’ argument that because his behavior “could” have been pain-related, there was no basis for drug testing. Even if his odd behavior had been due to pain, rather than drugs, the employer still had reasonable grounds to believe that Colpitts may have been under the influence of drugs. The Rhode Island drug testing statute does not require an employer to be certain that an employee is under the influence of drugs or alcohol.
Ban the Box Legislation to Take Effect in the City of St. Louis in 2021
Beginning January 1, 2021, employers with ten or more employees, located within the City of St. Louis will be prohibited from inquiring about an applicant’s criminal history on the employment application. Once the law takes effect, employers may not base a hiring or promotional decision on the criminal history, or sentence, of an applicant unless(1) the history is found to be reasonably related to, or bearing upon, the duties and responsibilities of the position; and (2) the employer can demonstrate that the decision is based on all available information.
Employers will be prohibited from inquiring about an applicant’s criminal history until such time as the applicant is otherwise determined to be qualified and has been interviewed for the position. The prohibition extends to employers seeking publicly available information about criminal history during the initial job application stage. Employers remain able to inquire about an applicant’s criminal history if all applicants in the final stage of selection will be similarly asked.
The prohibition further extends to employment advertisements containing exclusionary language based on criminal history. These prohibitions do not include employers hiring for positions where federal or state laws would otherwise exclude individuals with certain criminal histories. In such circumstances, employers can still publish these requirements and restrictions in advertisements and seek to determine an applicant’s compliance with these regulations during the initial application process.
The City of St. Louis joins 35 states, and over 150 cities and counties nationwide that have adopted “ban the box” legislation. This provides a marked change for local employers going forward once the ordinance takes effect. This will provide opportunity for employers in the City of St. Louis to evaluate their hiring procedures in order to determine compliance with the new requirements. Employers will also need to address policies concerning when criminal history inquiries are made of applicants, revise standard applicant paperwork required, and note that the requirements apply to decisions regarding promotions as well as new hires.
COVID-19 Update: New York State and CDC Guidance for Employers Reopening Offices
Under the NY Forward Reopening Plan, New York State has now issued guidance for reopening Phase Two industries, consisting of (i) office-based businesses; (ii) real estate; (iii) limited retail; (iv) vehicle sales, leases and rentals; (v) retail rental, repair and cleaning; (vi) commercial building management; and (vii) hair salons and barbershops. All essential and non-essential businesses operating in office settings must affirm and adhere to the State’s Interim Guidance for Office-Based Work During the COVID-19 Public Health Emergency (the “Guidance for Office-Based Work” or “Guidance”). The Guidance applies to business activities “where the core function takes place within an office setting” and is relevant to businesses in the following sectors: professional services, nonprofit, technology, administrative support, and higher education administration (excluding full campus reopening). It may also apply to a business that operates parts of its business functions under different guidance, such as a front office for a construction company.
In addition, the Centers for Disease Control and Prevention (the “CDC”) has issued employer guidelines specifically for office buildings. This memorandum serves as a follow-on to the COVID-19 Update: New York State Guidance on Reopening Businesses (“May 19 Memorandum”) and summarizes guidance relevant to employers operating offices under the NY Forward Reopening Plan and recent CDC guidance.
I. Key Takeaways
II. Reopening Phase Two Industries
As we discussed in our May 19 Memorandum, the NY Forward Reopening Plan permits businesses in each of New York State’s 10 regions to reopen in phases, with at least two weeks between each phase, once each region becomes eligible for reopening by satisfying public health and safety metrics. As of the date of this Memorandum, all regions of the State, except New York City, are now in Phase One or Phase Two of reopening. New York City is expected to enter Phase One on June 8.
Every business is required to develop a written COVID-19 Reopening Safety Plan. Businesses may satisfy this requirement either by using the Safety Plan template or drafting their own plans. Each business must retain its plan on the premises and make it available to the New York Department of Health (the “DOH”) in the event of an inspection. All Phase Two businesses are required to conspicuously post their completed Safety Plan on site.
III. Guidance for Office-Based Work
Standards for Responsible Office-Based Work Activities in New York State
In order to operate office-based activities in New York State, all businesses must adhere to the minimum standards outlined in the Guidance for Office-Based Work. The owner/operator of the business with office-based functions, or their designee (in either case, “the Responsible Parties”), is responsible for meeting the standards. The building owner, or their designee, is primarily responsible for meeting the standards with respect to any unleased or common areas, whereas the tenant, if not the owner, is primarily responsible for meeting the standards with respect to their leased space(s), unless the tenant and building owner reach an alternate agreement. Responsible Parties should coordinate with building management, where applicable.
All businesses must read and affirm the Guidance for Office-Based Work through the NY Forward Reopening Plan website. The Guidance is summarized below:
IV. CDC Guidance for Office Buildings
The CDC has also issued guidance for employers in office settings, which is summarized below:
The New York State website on the NY Forward Reopening Plan can be found here: https://forward.ny.gov/ny-forward.
The New York State guidelines for Phase Two Industries can be found here: https://forward.ny.gov/phase-two-industries.
The New York State Guide on the NY Forward Reopening Plan can be found here: https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/NYForwardReopeningGuide.pdf.
The Safety Plan template can be found here: https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/NYS_BusinessReopeningSafetyPlanTemplate.pdf.
New York State’s FAQ on how the NY Forward Reopening Plan may impact a business can be found here: https://esd.ny.gov/nyforward-faq.
The CDC Guidance can be found here: https://www.cdc.gov/coronavirus/2019-ncov/community/office-buildings.html.
The Business Reopening Lookup Tool can be found here: https://www.businessexpress.ny.gov/app/nyforward.
ADA Permits Employers to Require Medical Examinations for Problematic Behavior
Two federal appellate courts this month affirmed the right of employers under the Americans with Disabilities Act to require a medical examination to assess an employee’s fitness for duty based upon troubling conduct.
In Johnson v. Old Dominion University, the U.S. Court of Appeals for the 4th Circuit found that the employer had a basis for requiring the employee to undergo a fitness for duty examination based on his increasing inability to communicate and his “adversarial and erratic behavior,” as demonstrated by the excessive number of meritless grievances and document requests that he filed, and his interactions with his manager and co-workers that caused them to fear that he would harm them. Because he refused to undergo the examination on four separate occasions, he was disciplined and then terminated from employment.
In Lopez-Lopez v. The Robinson School, the U.S. Court of Appeals for the 1st Circuit also upheld the employer’s requirement that the employee undergo a medical examination and obtain treatment following a meeting to discuss the teacher’s inappropriate classroom behavior, during which she had a breakdown that resulted in her crying on the floor and threatening suicide.
In both cases, the courts found that the examinations met the standard under the ADA of being job-related and consistent with business necessity, as there was a reasonable basis—Johnson’s impaired communications skills and Lopez’s breakdown and suicidal statements—to believe that the individuals in each situation were unable to perform their essential job functions. As the 1st Circuit stated, “requiring medical examinations may be justified based on business necessity where there is a basis to believe that the employee’s ability to perform her job may be impaired or the employee presents a troubling behavior that would impact the work environment.”
To Tell or Not to Tell: OSHA Changes Course on Reporting of COVID-19 Cases by Employers
Do you have to report an employee’s positive COVID-19 case to OSHA and will OSHA investigate it? On the reporting front, OSHA’s initial guidance said positive cases were reportable only in specific industries, like healthcare, emergency response organizations, and correctional institutions. However, since outbreaks have been reported in additional specific industries, OSHA is now requiring ALL employers to report COVID-19 cases among their employees if a reasonable investigation shows that the case is work related and meets other specified criteria. Under the Revised Enforcement Guidance for Recording COVID-19 Cases, which went into effect on May 26, all employers must make a little deeper inquiry into how an employee contracted the disease and perhaps, report it to OSHA.
OSHA also issued an Updated Interim Enforcement Response Plan for Coronavirus Disease, also effective May 26, which considers the infection rate of certain geographic areas and addresses how the administration intends to handle COVID-19 related complaints, referrals and reports.
Updated Enforcement Plan
As we have said before, geography matters. Under the updated plan, OSHA’s enforcement response measures will differ based on whether “community spread of COVID-19 has significantly decreased” or whether a given geographic area continues to experience “sustained elevated community transmission or a resurgence” of COVID-19 transmission.
In areas where the spread of the virus has decreased, OSHA will resume its inspection planning policy set forth in Chapter 2 of the OSHA Field Operations Manual, CPL 02-00-164, with the exception that OSHA will continue to prioritize COVID-19 cases, utilize non-formal phone and fax investigations or rapid response investigations as needed to efficiently use its resources, and each OSHA area director will ensure that compliance safety and health officers use appropriate precautions and PPE during inspections.
In areas with continued high levels of virus transmission, OSHA will prioritize COVID-19 fatalities and “imminent danger exposures.” When resources are insufficient for onsite inspections, inspections will commence remotely with the expectation that an onsite inspection will follow at a later date. If resources are so limited that neither onsite nor remote inspections are possible, OSHA will conduct its investigations using a rapid response investigation “to identify hazards, provide abatement assistance, and confirm abatement.” In communities with a high prevalence of COVID-19 transmission, special attention to onsite inspections will be given to high-exposure risk work environments such as healthcare facilities, biomedical laboratories, funeral homes and crematoriums, and medical transport companies.
Revised Recordkeeping Enforcement Guidance
Because “outbreaks among workers in industries other than healthcare, emergency response, or correctional institutions have been identified,” OSHA expects employers to take action to determine whether workers’ illnesses are work related. Under OSHA’s recordkeeping requirements, a COVID-19 case is recordable if it:
(1) is confirmed to be COVID-19 as defined by the CDC;
(2) is work related under 29 CFR § 1904.5; and
(3) involves one or more of the general recording criteria set forth in 29 CFR § 1904.7.
The updated guidance continues to recognize the difficulty in determining whether a COVID-19 case is work related and grants enforcement discretion to compliance safety and health officers to assess employers’ efforts in making work-related determinations. Specifically, OSHA officers are instructed to assess the reasonableness of the employer’s investigation into work-relatedness, the evidence available to the employer, and the evidence that a COVID-19 illness was contracted at work.
Employers are not expected to undertake extensive medical inquiries into an employee’s case. The guidance indicates that an employer can satisfy the requirement to conduct a reasonable investigation by:
If after conducting a reasonable, good faith investigation and weighing all reasonably available evidence “the employer cannot determine whether it is more likely than not that exposure in the workplace played a causal role”, then the employer is not required to record the COVID-19 illness. However, in all cases, OSHA cautions that employers should examine COVID-19 cases among workers and respond appropriately to safeguard the health and safety of employees.
Mauritius: Coronavirus (COVID-19) and Data Protection
On 17 April 2020, the Mauritius Data Protection Office (the “DPO”) published a guide on data protection in the context of the Coronavirus (COVID-19) outbreak. The DPO, as the enforcing authority under the Data Protection Act (the “Act”), has reiterated that all organizations involved in the processing of data should continue to comply with all their obligations under the Act.
Data Processing in the Context of COVID-19
The Guide reminds data controllers that consent is not the sole basis for processing data. While the Act allows a data controller to process personal data when necessary, in respect of special categories of data (including health data), further specific conditions will apply. For instance, the DPO acknowledges that supermarkets are under a legal obligation to take the temperature of their customers, and it could be argued that this is required to protect the vital interests of data subjects, other people within the supermarket, and to allow the health authorities to perform their duties. As far as employers are concerned, it should be pointed out that employers have a statutory duty under the Occupational Health and Safety Act (“OSHA”) to ensure the safety, health and welfare of all employees at work, and the obligation under OSHA arises in all circumstances, irrespective of COVID-19.
Under the Guide, the DPO notes that employers may process the health data of their employees on the basis of their obligations under OSHA. In practice, this means employers must prepare and implement protocols or standard operational practices as soon as the confinement is lifted. However, in doing so, employers must always balance their legitimate interest in exercising their rights to collect health data of employees, and those of other data subjects as part of their obligations to implement preventive measures under the OSHA or as imposed by health authorities, against the rights and freedom of the data subjects. It would therefore be advisable that employers refrain from generalizing the practice of processing health data through individual questionnaires or requests to search for potential symptoms of an employee or his/her next of kin, or to collect medical report from employees or agents.
Employers should further bear in mind the following:
The Guide also provides that developers of apps and the use of artificial intelligence generally, should take into account data protection principles like data minimization, proportionality, necessity and time limitation. Practically, developers should ensure that privacy is being considered from the initial design stages and throughout the development and finalization stages of apps, and by doing so, are able to demonstrate that:
Last but not least, developers must also ensure that a written contract be entered into for the development of apps and that any instructions in respect of processing of personal data in the context of the fight against the COVID-19 must, at all times, be given by the organization commissioning the development of the app, as data controller.
This information has been prepared by Validity Screening Solutions for informational purposes only and is not legal advice. The content is intended for general information purposes only, and you are urged to consult a lawyer concerning your own situation and any specific legal questions you may have.