CDC, EEOC Issue Updates for COVID-19 GUIDANCE (April 10, 2020)
A. CDC Guidance Updates – Safe Work Practices for Critical Workers
On April 8, 2020, the Centers for Disease Control (CDC) issued interim guidance for implementing safety practices for critical infrastructure workers who may have had exposure to a person with suspected or confirmed COVID-19. The Guidance outlines steps to ensure continuity so that these workers who remain asymptomatic take additional precautions and may continue working following a potential exposure to COVID-19.
The Department of Homeland Security has previously identified 16 critical infrastructure sectors which are considered vital to the United States security, economy, and national public health or safety, such as communications, food and agriculture, government, information technology, and transportation. The CDC Guidance recognizes specific workers in areas such as federal, state, and local law enforcement, 911 Call Center employees, hazardous material responders from government and the private sector, janitorial staff and other custodial staff and workers in food and agriculture, critical manufacturing, informational technology, transportation, energy and government facilities.
Under the Guidance, “a potential exposure” means having a household contact or close contact within 6 feet of an individual with a confirmed or suspected case of COVID-19 within the 48-hours before the individual became symptomatic. The CDC recommends that following such an exposure, and provided the employee remains asymptomatic, the following measures should be taken prior to and during their work shift:
- Employers should pre-screen, take the employee’s temperature and assess symptoms before the employee enters the facility;
- The employee should:
- Self-monitor under the supervision of their employer’s occupational health program;
- Wear an employer-approved face mask at all times in the workplace for at least 14 days after the last exposure; and
- Practice social distancing of at least 6 feet and practice such social distancing as work duties permit in the workplace.
- Employers should ensure work areas and surfaces are cleaned and disinfected frequently.
Employees who become sick should be sent home immediately and their workspaces cleaned and disinfected.
Finally, the CDC Guidance recommends employers compile information as to persons who had contact (came within 6 feet) with an ill employee at any time during the two days prior to becoming symptomatic and these individuals should be considered under the “potential exposure” guidelines.
B. EEOC Guidance Updates – The ADA and Discrimination
On April 9, 2020, the EEOC issued updates to its COVID-19 Guidance to expand on a previous publication that focused on compliance with the ADA (Americans with Disabilities Act) and Rehabilitation Act, and to add questions-and-answers to respond to common inquiries. Employers are reminded to rely on the CDC and public health authorities regarding coronavirus symptoms when screening employees entering the workplace, and to maintain confidentiality of employee medical information.
The updated Guidance clarifies that an employer may disclose the name of an employee who has COVID-19 to a public health agency and also clarifies that if a temporary staffing agency learns that an employee has COVID-19, then the staffing agency may notify the employer where the temporary worker was placed, and disclose the name of the worker so that the employer may determine if that worker had contact with anyone in the workplace. Of course, appropriate measures should be taken to limit the notification to those with a need to know within each organization.
The EEOC Guidance reminds employers that the laws against discrimination still apply. For example, an employer may not delay a placement or withdraw a job offer because the individual is 65 years old or pregnant, but may choose to allow telework or to discuss with the individual if the employee would like to postpone the start date of employment. Employers must continue to consider reasonable accommodations as well, such as where an employee has a pre-existing condition that puts the employee at a greater risk of COVID-19. The EEOC reiterates that as with any accommodation request, employers may ask questions to determine whether the condition is a disability, discuss accommodations that may meet the employee’s needs, and request medical documentation if needed. The EEOC emphasizes the need for flexibility in addressing accommodation requests.
The Guidance reiterates the need to prevent harassment in the workplace and to communicate to the workforce that fear of the COVID-19 should not be misdirected against individuals because of protected characteristics.
Finally, the Guidance included a cautionary reminder that when an employer is conducting layoffs, the special rules regarding severance packages, releases and waivers still apply.