33
4/28/2020 1 The Path Forward Safety & Legal Considerations to Prepare Your Workplace for Return Amid the COVID-19 Pandemic Presented by: Carl Habekost, Esq. Elizabeth Bolduc, Esq. Donald D. Elswick, CIH, CSP, CIT, CHMM William Back, Esq. Employer Checklist Workplace safety Employer testing Recall procedures Remote work Policy changes 1 2

The Path Forward- ELB revisions€¦ · •Z } ] v P v Z } ] v P K µ ] } v o / v i µ ] v / o o v ~ î õ &Z W í õ ì ð "N^alA_Lq^ SSNJpVvN NA]pUJAlN 0NmiVlApaly -lapNJpVa_ __qA]

  • Upload
    others

  • View
    0

  • Download
    0

Embed Size (px)

Citation preview

Page 1: The Path Forward- ELB revisions€¦ · •Z } ] v P v Z } ] v P K µ ] } v o / v i µ ] v / o o v ~ î õ &Z W í õ ì ð "N^alA_Lq^ SSNJpVvN NA]pUJAlN 0NmiVlApaly -lapNJpVa_ __qA]

4/28/2020

1

The Path ForwardSafety & Legal

Considerations to Prepare Your Workplace for Return

Amid the COVID-19 Pandemic

Presented by:

Carl Habekost, Esq.

Elizabeth Bolduc, Esq.

Donald D. Elswick, CIH, CSP, CIT, CHMM

William Back, Esq.

Employer Checklist

• Workplace safety

• Employer testing

• Recall procedures

• Remote work

• Policy changes

1

2

Page 2: The Path Forward- ELB revisions€¦ · •Z } ] v P v Z } ] v P K µ ] } v o / v i µ ] v / o o v ~ î õ &Z W í õ ì ð "N^alA_Lq^ SSNJpVvN NA]pUJAlN 0NmiVlApaly -lapNJpVa_ __qA]

4/28/2020

2

Workplace Safety

Evaluate Workplace and Make Determinations

Understand the Hazard

How does the virus transmit to you? Droplets (from cough/sneeze) Surfaces (Hand – surface – face) Cross contamination

People who are infected often—but not always—have symptoms of illness. People without symptoms are able to spread virus.

Virus’ Impacts on

Society

Virus’ Impacts on

Society

Environment’s Impact on

Virus

Environment’s Impact on

Virus

Virus’ Impact in you

Virus’ Impact in you

3

4

Page 3: The Path Forward- ELB revisions€¦ · •Z } ] v P v Z } ] v P K µ ] } v o / v i µ ] v / o o v ~ î õ &Z W í õ ì ð "N^alA_Lq^ SSNJpVvN NA]pUJAlN 0NmiVlApaly -lapNJpVa_ __qA]

4/28/2020

3

Understand the Environment

Infected person coughs

Virus on their hands

Hand touches surface

Second person touches surface

Person touches face

Second person infected

Infection Process

Understand the Environment

Infected person coughs

Virus on their hands

Hand touches surface

Second person touches surface

Person touches face

Second person infected

Infection Process

Wash Wash hands

Wear Wear mask

Wash Wash hands

Clean Clean surfaces

5

6

Page 4: The Path Forward- ELB revisions€¦ · •Z } ] v P v Z } ] v P K µ ] } v o / v i µ ] v / o o v ~ î õ &Z W í õ ì ð "N^alA_Lq^ SSNJpVvN NA]pUJAlN 0NmiVlApaly -lapNJpVa_ __qA]

4/28/2020

4

Model the Environment – Support the Decisions

Personal Controls

Business Operated Controls

Facility/Building Controls

•A model is a faithful representation of the real world•Allows us to consider “what ifs”•Supports and gives decision options

Occupational Exposure Risks

OSHA is closely coordinating with CDC, including NIOSH, and other agencies to monitor the ongoing pandemic.

The risk of exposure in many workplaces likely reflects the risk to the general public in the community where the workplace is located.

Risk increases when workers have frequent, close contact with the general public or other coworkers.

Photo: U.S. Navy / Seaman Rob Aylward

7

8

Page 5: The Path Forward- ELB revisions€¦ · •Z } ] v P v Z } ] v P K µ ] } v o / v i µ ] v / o o v ~ î õ &Z W í õ ì ð "N^alA_Lq^ SSNJpVvN NA]pUJAlN 0NmiVlApaly -lapNJpVa_ __qA]

4/28/2020

5

Existing OSHA Standards Protect Workers from Exposure

Follow existing OSHA standards to help protect workers from exposure to SARS-CoV-2 and infection with COVID-19.

Employers should also remember that OSHA can use the General Duty Clause, Section 5(a)(1), of the Occupational Safety and Health Act to ensure that workers are protected from recognized safety and health hazards that may cause serious harm.

Relevant OSHA requirements

Personal Protective Equipment (29 CFR 1910 subpart I), including:

PPE General Requirements (1910.132)

Eye and Face Protection (1910.133)

Respiratory Protection (1910.134)

Hand Protection (29 CFR 1910.138)

Bloodborne Pathogens (29 CFR 1910.1030)

Hazard Communication (29 CFR 1910.1200)

Recordkeeping (29 CFR part 1904)

Occupational exposure risks

Workers in some sectors may have increased risk of occupational exposure to SARS-CoV-2, including in: Healthcare and Laboratories Emergency response Mortuary services and other deathcare Airline operations Border protection and passenger screening Critical retail operations (e.g., grocery stores,

pharmacies)Photo: U.S. Customs and Border Protection / James Tourtellotte

9

10

Page 6: The Path Forward- ELB revisions€¦ · •Z } ] v P v Z } ] v P K µ ] } v o / v i µ ] v / o o v ~ î õ &Z W í õ ì ð "N^alA_Lq^ SSNJpVvN NA]pUJAlN 0NmiVlApaly -lapNJpVa_ __qA]

4/28/2020

6

Exposure risk – very high

• Healthcare workers (e.g., doctors, nurses, dentists, paramedics, EMTs) performing or present for aerosol-generating procedures (e.g., intubation, cough induction procedures, bronchoscopies, CPR, some dental procedures and exams, invasive specimen collection) on known or suspected COVID-19 patients.

• Healthcare or laboratory personnel collecting or handling specimens from known or suspected COVID-19 patients.

• Morgue workers performing autopsies on the bodies of people who are known to have, or suspected of having COVID-19 at the time of their death.

Exposure Risk – High

• Healthcare delivery and support staff (e.g. doctors, nurses, and other hospital staff who must enter patients’ rooms) exposed to known or suspected COVID-19 patients. (While NO aerosol generating procedures are being performed.)

• Medical transport workers (e.g. ambulance vehicle operators) moving known or suspected COVID-19 patients in enclosed vehicles.

• Mortuary workers involved in preparing the bodies of people who are known to have, or suspected of having COVID-19 at the time of their death.

11

12

Page 7: The Path Forward- ELB revisions€¦ · •Z } ] v P v Z } ] v P K µ ] } v o / v i µ ] v / o o v ~ î õ &Z W í õ ì ð "N^alA_Lq^ SSNJpVvN NA]pUJAlN 0NmiVlApaly -lapNJpVa_ __qA]

4/28/2020

7

Exposure Risk – Medium

• Jobs that require frequent (i.e. more than a few minutes) and/or close (i.e. within 6 feet) contact with people who may be infected with SARS-CoV-2, but who are not known or suspected COVID-19 patients.

• Examples include:• Critical retail workers, such as those in pharmacies and grocery stores.

• Transit workers, such as bus drivers, subway operators, and taxi drivers.

• Workers in other transportation operations.

Exposure Risk – Low (Caution)

• Jobs that do not require contact with people known to be, or suspected of being infected with SARS-CoV-2 nor frequent close contact with (within 6 feet) of the general public.

• Workers in this category have minimal occupational contact with the public and other coworkers.

13

14

Page 8: The Path Forward- ELB revisions€¦ · •Z } ] v P v Z } ] v P K µ ] } v o / v i µ ] v / o o v ~ î õ &Z W í õ ì ð "N^alA_Lq^ SSNJpVvN NA]pUJAlN 0NmiVlApaly -lapNJpVa_ __qA]

4/28/2020

8

OSHA Enforcement

OSHA:

Typically responds to emergencies, including disease outbreaks, in a technical assistance posture.

Provides compliance assistance to employers to help ensure workers are protected.

Provides technical assistance and support to other federal agencies, as well as state/local partners.

OSHA enforcement authority

During emergency response operations, even when OSHA is operating in a technical assistance and support mode, OSHA standards remain in effect and OSHA retains its ability to enforce the OSHA standards under the OSH Act.

Enforcement of OSHA standards follows the jurisdiction in place before the emergency, such as in states operating OSHA-approved occupational safety and health programs called State Plans.

OSHA Enforcement Discretion

OSHA has provided enforcement discretion for some of its requirements, including:• Respiratory Protection

Standard (29 CFR 1910.134)• Other health standards with

respirator requirements• Recording and Reporting

Occupational Injuries and Illness (29 CFR Part 1904)

Memorandum Effective

Healthcare Respiratory Protection Annual Fit-Testing for N95 Filtering Facepieces During the COVID-19 Outbreak

March 14, 2020 - present

Enforcement Guidance for Respiratory Protection and the N95 Shortage Due to the 2019 Novel Coronavirus Disease (COVID-19) Pandemic

April 3, 2020 –present

Enforcement Guidance for Use of Respiratory Protection Equipment Certified Under Standards of Other Countries or Jurisdictions During the Coronavirus Disease 2019 (COVID-19) Pandemic

April 3, 2020 -present

Expanded Temporary Enforcement Guidance on Respiratory Protection Fit-Testing for N95 Filtering Facepieces in All Industries During the Coronavirus Disease (COVID-19) Pandemic

April 8, 2020 -present

Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19)

April 10, 2020 -present

15

16

Page 9: The Path Forward- ELB revisions€¦ · •Z } ] v P v Z } ] v P K µ ] } v o / v i µ ] v / o o v ~ î õ &Z W í õ ì ð "N^alA_Lq^ SSNJpVvN NA]pUJAlN 0NmiVlApaly -lapNJpVa_ __qA]

4/28/2020

9

OSHA Guidance

OSHA has developed a variety of guidance materials for workers and employers on how to stay healthy during the pandemic.

OSHA.gov/coronavirus includes information on implementing the hierarchy of controls when workers have specific exposure risks.

OSHA Guidance

OSHA guidance helps employers comply with OSHA standards.

Guidance is based on anticipated hazards and risks, and incorporates standard, contact, and airborne precautions, and use of face/eye protection.

Guidance should be adapted based on employer’s hazard assessment and workers’ tasks.

Clockwise from L: public domain; WikimediaCommons;CDC/Kimberly Smith & Christine Ford

17

18

Page 10: The Path Forward- ELB revisions€¦ · •Z } ] v P v Z } ] v P K µ ] } v o / v i µ ] v / o o v ~ î õ &Z W í õ ì ð "N^alA_Lq^ SSNJpVvN NA]pUJAlN 0NmiVlApaly -lapNJpVa_ __qA]

4/28/2020

10

OSHA Guidance

For all workers, regardless of specific exposure risks: Practice good and frequent hand hygiene. Follow good cough/sneeze etiquette. Avoid touching the eyes, nose, or mouth with

unwashed hands. Avoid close contact with people who are sick.

Photo: U.S. Department of Defense

New CDC Facemask Guidance

• Everyone should wear a cloth face cover when they have to go out in public.

• Cloth face coverings should not be placed on:• young children under age 2,

• anyone who has trouble breathing, or is unconscious, incapacitated or otherwise unable to remove the mask without assistance.

• The cloth face cover is meant to protect other people in case you are infected.

• Do NOT use a facemask meant for a healthcare worker.

• Continue to keep about 6 feet between yourself and others. The cloth face cover is not a substitute for social distancing.

Good risk assessment will

include:• Safety challenges

for masks

• Obstructed view

• Caught in

• ADA liabilities

Good risk assessment will

include:• Safety challenges

for masks

• Obstructed view

• Caught in

• ADA liabilities

19

20

Page 11: The Path Forward- ELB revisions€¦ · •Z } ] v P v Z } ] v P K µ ] } v o / v i µ ] v / o o v ~ î õ &Z W í õ ì ð "N^alA_Lq^ SSNJpVvN NA]pUJAlN 0NmiVlApaly -lapNJpVa_ __qA]

4/28/2020

11

OSHA Guidance

Employers should implement protocols for regularly cleaning and disinfecting high-touch surfaces in the work environment.

Wipe down surfaces such as door push bars, shopping carts, points of sale, chairs in waiting areas, and other areas that customers, visitors, or workers frequently touch.

Follow manufacturer’s instructions for use of all EPA-approved cleaning and disinfection products.

CDC provides detailed guidance for environmental cleaning and disinfection.

OSHA Guidance

Train all workers about their risk of occupational exposure to COVID-19 as well as on what to do if they have traveled to high-risk areas or been exposed to possible cases.

For workers at particular risk of exposure (e.g., in healthcare, others), discuss: Sources of exposure to the virus and hazards associated with that exposure. Appropriate ways to prevent or reduce the likelihood of exposure, including use of

engineering and administrative controls, safe work practices, and PPE.

Some OSHA standards (e.g., BBP, PPE) require worker training.

21

22

Page 12: The Path Forward- ELB revisions€¦ · •Z } ] v P v Z } ] v P K µ ] } v o / v i µ ] v / o o v ~ î õ &Z W í õ ì ð "N^alA_Lq^ SSNJpVvN NA]pUJAlN 0NmiVlApaly -lapNJpVa_ __qA]

4/28/2020

12

OSHA Guidance

For U.S. workers and employers of workers with potential occupational exposures to COVID-19:

Identify and isolate suspected cases.

Implement other precautions appropriate for the worksite and job tasks, and according to the hierarchy of controls.

OSHA Guidance

What should standard, contact, and airborne precautions consist of in workplaces where workers may be exposed to COVID-19? OSHA guidance breaks this down by worker type.

Engineering controls, such as isolation rooms and other physical barriers, can limit most workers’ exposures.

Administrative controls and safe work practices include measures such as limiting access to patient care areas, effective sharps management, and worker training.

PPE may include gloves, gowns, goggles or face shields, and N95 or better respirators.

23

24

Page 13: The Path Forward- ELB revisions€¦ · •Z } ] v P v Z } ] v P K µ ] } v o / v i µ ] v / o o v ~ î õ &Z W í õ ì ð "N^alA_Lq^ SSNJpVvN NA]pUJAlN 0NmiVlApaly -lapNJpVa_ __qA]

4/28/2020

13

Additional Q&A

Q: Why does OSHA recommend goggles in addition to airborne precautions?

A: Precautions for SARS-CoV-2 are based on evolving epidemiologic evidence of how the virus spreads, and what is known about transmission from SARS and MERS outbreaks.

Airborne precautions, including the use of NIOSH-certified N95 or better respirators, are appropriate because the virus may be spread through a range of respirable particle sizes.

Since SARS-CoV-2 may infect people through mucous membranes of the eyes and face, face/eye protection is also needed.

PandemicPlan

Prepare to implement basic infection prevention measures

Develop policies and procedures for prompt identification and isolation of sick people

Develop, implement, and communicate about workplace flexibilities and protections

Implement workplace controls (based on risk)

25

26

Page 14: The Path Forward- ELB revisions€¦ · •Z } ] v P v Z } ] v P K µ ] } v o / v i µ ] v / o o v ~ î õ &Z W í õ ì ð "N^alA_Lq^ SSNJpVvN NA]pUJAlN 0NmiVlApaly -lapNJpVa_ __qA]

4/28/2020

14

Sick Employees

Identify sick employees and send home as

soon as possible

Identify sick employees and send home as

soon as possible

Employees need to contact their

healthcare provider ASAP

Employees need to contact their

healthcare provider ASAP

Suspected cases may be cleared

to return to work as soon as:

Suspected cases may be cleared

to return to work as soon as:

At least 3 days (72 hours) have passed since recovery defined as resolution of fever without the use of fever--reducing medications and improvement in respiratory symptoms (e.g., cough, shortness of breath); and,

• At least 7 days have passed since symptoms first appeared.

If confirmed case by testing:

If confirmed case by testing:

May return as above after two (2) negative tests within 24 hours

Keep in mind that some

employees will be ill for several

weeks

Keep in mind that some

employees will be ill for several

weeks

Positive Cases which are Asymptomatic

Persons with laboratory-confirmed COVID-19 who have not had any symptoms may

discontinue isolation when at least 7 days have passed since the date of their first

positive COVID-19 diagnostic test and have had no subsequent illness provided they

remain asymptomatic.

For 3 days following discontinuation of isolation, these persons should continue

to limit contact (stay 6 feet away from others) and limit potential of dispersal of respiratory secretions by wearing a facial

covering for their nose and mouth whenever they are in close contact where

other people arepresent.

27

28

Page 15: The Path Forward- ELB revisions€¦ · •Z } ] v P v Z } ] v P K µ ] } v o / v i µ ] v / o o v ~ î õ &Z W í õ ì ð "N^alA_Lq^ SSNJpVvN NA]pUJAlN 0NmiVlApaly -lapNJpVa_ __qA]

4/28/2020

15

Exposed Employees

Exposed close contacts need to:Stay home until 14 days after last exposure and maintain social distance (at least 6 feet) from others at all times• Self-monitor for symptoms

• Check temperature twice a day• Watch for fever*, cough, or shortness of breath

Avoid contact with people at higher risk for severe illness (unless they live in the same home and had same exposure)• Follow CDC guidance if symptoms develop

Those who are close contacts of a person with symptomatic COVID-19 during

period from 48 hours before to the day of

symptoms onset

Exposed Employees In Critical Infrastructure

Exposed Employees stay at work under the following conditions:

• Pre--Screen: Employers should measure the employee’s temperature and assess symptoms prior to them starting work. Ideally, temperature checks should happen before the individual enters the facility.

• Regular Monitoring: As long as the employee doesn’t have a temperature or symptoms, they should self-monitor under the supervision of their employer’s occupational health program.

• Wear a Mask: The employee should wear a face mask at all times while in the workplace for 14 days after last exposure. Employers can issue facemasks or can approve employees’ supplied cloth face coverings in the event of shortages.

• Social Distance: The employee should maintain 6 feet and practice social distancing as work duties permit in the workplace.

• Disinfect and Clean workspaces: Clean and disinfect all areas such as offices, bathrooms, common areas, shared electronic equipment routinely.

29

30

Page 16: The Path Forward- ELB revisions€¦ · •Z } ] v P v Z } ] v P K µ ] } v o / v i µ ] v / o o v ~ î õ &Z W í õ ì ð "N^alA_Lq^ SSNJpVvN NA]pUJAlN 0NmiVlApaly -lapNJpVa_ __qA]

4/28/2020

16

Review of Recordkeeping Requirements

OSHA recordable injury and workers’ compensation requirements are NOT the same

OSHA Recording Criteria:

• Work related• New case• General recording criteria

• Death• Days away• Restricted work• Treatment beyond first aid• Loss of consciousness• Significant injury diagnosed

• Work related• New case• General recording criteria

• Death• Days away• Restricted work• Treatment beyond first aid• Loss of consciousness• Significant injury diagnosed

Workers’ Comp Criteria:

• In the course of and arising out of employment

• Must establish a causal relationship by a preponderance of the evidence

• HB571 introduced, not passed

• In the course of and arising out of employment

• Must establish a causal relationship by a preponderance of the evidence

• HB571 introduced, not passed

OSHA Guidance – Recordkeeping Exposures to COVID-19

• COVID-19 can be a recordable illness if a worker is infected as a result of performing their work-related duties. However, employers are only responsible for recording cases of COVID-19 if all of the following are met:

• The case is a confirmed case of COVID-19 (see CDC information on persons under investigation and presumptive positive and laboratory-confirmed cases of COVID-19);

• The case is work-related, as defined by 29 CFR 1904.5; and

• The case involves one or more of the general recording criteria set forth in 29 CFR 1904.7 (e.g. medical treatment beyond first-aid, days away from work).

• OSHA is providing enforcement discretion around recordkeeping for most sectors.

• Visit OSHA’s Injury and Illness Recordkeeping and Reporting Requirements page for more information.

31

32

Page 17: The Path Forward- ELB revisions€¦ · •Z } ] v P v Z } ] v P K µ ] } v o / v i µ ] v / o o v ~ î õ &Z W í õ ì ð "N^alA_Lq^ SSNJpVvN NA]pUJAlN 0NmiVlApaly -lapNJpVa_ __qA]

4/28/2020

17

Did the employee experience an injury or illness?

Do not record theinjury or illness

Is the injury or illness work-related?

Is the injuryor illness a new case?

Update the previouslyrecorded injury or illness

entry if necessary.

Does the injury or illness meet thegeneral recording criteria

or the application to specific cases?

Record theinjury or illness

No

No

Yes

Yes

Yes

No

YesNo

The decision tree for

recording work-

related injuries and

illnesses.

Employee Involvement in Injury Reporting

Must inform each employee of how he or she is to report a work-related injury or illness (document in writing)

The reporting procedure must be reasonable

The procedure is not reasonable if it deters or discourages accurate reporting

The procedure should encourage prompt and accurate reporting

33

34

Page 18: The Path Forward- ELB revisions€¦ · •Z } ] v P v Z } ] v P K µ ] } v o / v i µ ] v / o o v ~ î õ &Z W í õ ì ð "N^alA_Lq^ SSNJpVvN NA]pUJAlN 0NmiVlApaly -lapNJpVa_ __qA]

4/28/2020

18

Inform Employees of Anti-

Discrimination Policy

Employees have the right to

report injuries and illnesses

Employees have the right to

report injuries and illnesses

Employers are prohibited from discharging or discriminating

against employees for reporting work-related injuries and

illnesses

Employers are prohibited from discharging or discriminating

against employees for reporting work-related injuries and

illnesses

Employers must not discharge or

discriminate against any

employee for reporting a work-related injury or

illness

Employers must not discharge or

discriminate against any

employee for reporting a work-related injury or

illness

Document the training in

writing

Document the training in

writing

Returning To Normal Operations

Follow government guidance

Likely will be a slow phase-in of business in the US and globally

Evaluate job risk and need for which type of social distancing

Determine ongoing telework

Update travel restrictions

Update employee communications

Update your pandemic plan

35

36

Page 19: The Path Forward- ELB revisions€¦ · •Z } ] v P v Z } ] v P K µ ] } v o / v i µ ] v / o o v ~ î õ &Z W í õ ì ð "N^alA_Lq^ SSNJpVvN NA]pUJAlN 0NmiVlApaly -lapNJpVa_ __qA]

4/28/2020

19

Responsible Restart Ohio

Beginning May 1

Manufacturing, Distribution & Construction

Reopening May 4, 2020

37

38

Page 20: The Path Forward- ELB revisions€¦ · •Z } ] v P v Z } ] v P K µ ] } v o / v i µ ] v / o o v ~ î õ &Z W í õ ì ð "N^alA_Lq^ SSNJpVvN NA]pUJAlN 0NmiVlApaly -lapNJpVa_ __qA]

4/28/2020

20

General Office

Environments

Reopening May 4, 2020

Consumer, Retail & Services

Reopening May 12, 2020

39

40

Page 21: The Path Forward- ELB revisions€¦ · •Z } ] v P v Z } ] v P K µ ] } v o / v i µ ] v / o o v ~ î õ &Z W í õ ì ð "N^alA_Lq^ SSNJpVvN NA]pUJAlN 0NmiVlApaly -lapNJpVa_ __qA]

4/28/2020

21

Businesses To Remain Closed

K-12 Schools Restaurants and Bars (Carryout & Delivery

Permitted

Personal Appearance/ Beauty Services

Older Adult Day Care Services & Senior Centers

Adult Day Support/Vocational Habilitation Services

Rooming and Boarding Houses & Workers’ Camps

Entertainment/Recreation/Gymnasium Cites

Campgrounds Including Recreational Camps & RV

Parks

Employer Testing

Can Employers Test For COVID-19?

41

42

Page 22: The Path Forward- ELB revisions€¦ · •Z } ] v P v Z } ] v P K µ ] } v o / v i µ ] v / o o v ~ î õ &Z W í õ ì ð "N^alA_Lq^ SSNJpVvN NA]pUJAlN 0NmiVlApaly -lapNJpVa_ __qA]

4/28/2020

22

ADA Background

ADA protects applicants and employees from disability discrimination

Generally the ADA prohibits an employer from making disability-related inquiries and requiring medical examinations of employees.

An inquiry is "disability-related" if it is likely to elicit information about a disability.

A "medical examination" is a procedure or test that seeks information about an individual’s physical or mental impairments or health.

ADA prohibits covered employers from excluding individuals with disabilities from the workplace for health or safety reasons unless they pose a "direct threat."

A "direct threat" is "a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.

May an Employer Administer a Test to Detect the Presence of the COVID-19 Virus Before

Allowing an Employee to Enter the Workplace?• Generally, the ADA requires that any mandatory

medical test of employees be "job related” and “consistent with business necessity.”

• During a pandemic, however, employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others

• March 2020, the EEOC has clarified that employers may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus under the direct threat standard.

• Results must be kept confidential

• Employers should ensure that the tests are accurate and reliable (Follow FDA, CDC or other public health authorities for guidance)

• Employers should ensure testing is not done in a discriminatory manner

• Consider possibility of false positives or false negatives

*Employers should still require infection control practices (such as social distancing, regular handwashing, and other measures) in the workplace to prevent transmission of COVID-19

43

44

Page 23: The Path Forward- ELB revisions€¦ · •Z } ] v P v Z } ] v P K µ ] } v o / v i µ ] v / o o v ~ î õ &Z W í õ ì ð "N^alA_Lq^ SSNJpVvN NA]pUJAlN 0NmiVlApaly -lapNJpVa_ __qA]

4/28/2020

23

May an Employer Take

the Temperature of Employee

Before Entering the Workplace?

Generally, measuring an employee's body temperature is a medical examination.

• During a pandemic, employers may take employee’s temperatures

• Results must be kept confidential

• Also be careful to avoid overstepping. Any screening, test or inquiry that is broader than necessary to address the potential direct threat is prohibited.

Can Employers Ask If Employees Have COVID-19?

• During a pandemic, employers may ask such employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat.

• Employers can require employees to conduct a health screening each day before entering the workplace

• Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.

45

46

Page 24: The Path Forward- ELB revisions€¦ · •Z } ] v P v Z } ] v P K µ ] } v o / v i µ ] v / o o v ~ î õ &Z W í õ ì ð "N^alA_Lq^ SSNJpVvN NA]pUJAlN 0NmiVlApaly -lapNJpVa_ __qA]

4/28/2020

24

AdditionalEmployer Considerations

• Employers may be under an obligation to pay employees for time spent waiting to be tested.

• If testing or health screening reveal an employee’s medical condition, employers may need to determine whether it needs to accommodate the employee.

• Employers should consider how to handle an employee’s refusal to submit to a testing or health assessment.

• Consider obtaining employee acknowledgments and agreements to screenings and scope of test.

• Determine under what conditions may an employee who tests positive for COVID-19 will be able to return to the workplace.

• Consider what measures the employer will take if an employee test positive to address potential exposure in the workplace.

Rapid COVID-19 Testing

47

48

Page 25: The Path Forward- ELB revisions€¦ · •Z } ] v P v Z } ] v P K µ ] } v o / v i µ ] v / o o v ~ î õ &Z W í õ ì ð "N^alA_Lq^ SSNJpVvN NA]pUJAlN 0NmiVlApaly -lapNJpVa_ __qA]

4/28/2020

25

COVID-18 IGG/IGM Rapid Test Kit

• Rapid Results: 2-5 minutes, No use of a lab

• Detection Window IGM:• Symptomatic 3-5 days• Asymptomatic 7 days

• Sample: Test can work with blood, plasma, and serum samples

• Storage: The kit can be stored at room temperature or refrigerated (2-30ºC)

• Shelf life: 24 months from manufacture date

• Sold in packs of 100• Forensic/Professional Use

Only**• As of March 2020, FDA Waived

49

50

Page 26: The Path Forward- ELB revisions€¦ · •Z } ] v P v Z } ] v P K µ ] } v o / v i µ ] v / o o v ~ î õ &Z W í õ ì ð "N^alA_Lq^ SSNJpVvN NA]pUJAlN 0NmiVlApaly -lapNJpVa_ __qA]

4/28/2020

26

Recall Procedures

Prepare a plan for how and when employees will return to work or to the worksite to create an organized and controlled approach.

Recall Procedures Considerations

• Consider phasing employees back to work

• Identify objective, non-Discriminatory factor for recalling employees (i.e. seniority, job classification)

• Identify employees who can still work from home

• Determine how to handle employees who refuse or unable to return to work

51

52

Page 27: The Path Forward- ELB revisions€¦ · •Z } ] v P v Z } ] v P K µ ] } v o / v i µ ] v / o o v ~ î õ &Z W í õ ì ð "N^alA_Lq^ SSNJpVvN NA]pUJAlN 0NmiVlApaly -lapNJpVa_ __qA]

4/28/2020

27

Remote Work

• General office workers are required to work from home when possible

• Strongly consider special accommodations for those who request it.

Telework Agreements

Since the Governor and health experts have insisted this disease will be with us for at least 1 year to 18 months, employers should consider incorporating formalized long-term teleworking agreements. These agreements identify, among other things, the physical work area for employees, the working hours, and how production will be measured. Telework can also be done on a part-time basis, with an employee working on-site certain days or at certain times.

Social Distancing in the Workplace

• review physical workspaces & determine how to implement social distancing. • reduced workforce on site

• telework for those who can

• take advantage of closed common area and empty spaces to relocate employees

• use tape & other measurement devices to show safe distancing

• review how people enter/exit the facility

• if there is temperature taking, a drive through temp test or other measures to ensure that people remain 6 feet apart while in line

53

54

Page 28: The Path Forward- ELB revisions€¦ · •Z } ] v P v Z } ] v P K µ ] } v o / v i µ ] v / o o v ~ î õ &Z W í õ ì ð "N^alA_Lq^ SSNJpVvN NA]pUJAlN 0NmiVlApaly -lapNJpVa_ __qA]

4/28/2020

28

Vulnerable PopulationsEmployers should also review their workforce for employees who fall under the definition of

“vulnerable populations.”

The employer should discuss with the employees whether they intend to return and what the consequences of not returning shall be.

•Governor DeWine has expressed that he would hope employers would work with employees to accommodate both those considered part of the vulnerable population and those who live with a member of the vulnerable population but has stopped short of requiring them to.

Some other things to consider in regards to the vulnerable population are:

• These employees may receive directives from health care providers not to return to work and to remain in quarantine.

• Employees who are advised to quarantine are entitled to two weeks paid leave under the FFCRA and unemployment benefits under the CARES Act.

• Employers should consider whether an accommodation is required and whether allowing the individual to remain off work is reasonable.

• Employers are not required to accommodate employees just because they are at higher risk; the employee must be disabled. However, if an employer verifies that an employee has a disability that puts the individual at a higher risk of complications or exacerbates their condition, the disability threshold is met.

• If you think an accommodation is necessary, you should engage in the interactive process to identify an accommodation that does not pose an undue hardship.

• Telework will likely be one such option and should be discussed.

Business Travel

For essential travel, employers should consider the following:

• Make sure that any employees who travel for essential work will be able to conduct the necessary business activities at their destination.

• Employees should also be apprised of current regulations governing the travel destination, so that proper arrangements can be made for the employee to comply with those local rules.

• Updated travel policies including exactly what is expected of the employee after returning from the trip.

• This will likely include a 2 week quarantine, which should be discussed in advance.

For essential travel, employers should consider the following:

• Make sure that any employees who travel for essential work will be able to conduct the necessary business activities at their destination.

• Employees should also be apprised of current regulations governing the travel destination, so that proper arrangements can be made for the employee to comply with those local rules.

• Updated travel policies including exactly what is expected of the employee after returning from the trip.

• This will likely include a 2 week quarantine, which should be discussed in advance.

Employers will need to determine what business travel is essential vs. non-essential. Any non-essential travel will likely be cancelled for the foreseeable future.

55

56

Page 29: The Path Forward- ELB revisions€¦ · •Z } ] v P v Z } ] v P K µ ] } v o / v i µ ] v / o o v ~ î õ &Z W í õ ì ð "N^alA_Lq^ SSNJpVvN NA]pUJAlN 0NmiVlApaly -lapNJpVa_ __qA]

4/28/2020

29

Policy Changes

Temporary Policy ChangesEmployers may want to consider making the following policy updates on a temporary basis

PTO Policies

Employers operating under a general PTO system, with no distinction between time off for illness, vacations, or personal time may consider temporarily changing this system. Under the traditional PTO system, employees are more likely to come to work sick to save time for vacations. Designating a certain amount of days exclusively for illness encourages employees to stay home when they are not feeling well

Do not require a healthcare provider’s note to validate illness or return to work as medical facilities are extremely busy and may not be able to provide documentation in a timely manner

Sick Leave Policies

Ensure your sick leave policies are flexible to allow sick employees to stay home

Make sure it is clear in your policy that employees with any kind of illness, including cold symptoms and fever should stay at home during the pandemic (consider family members as well)

Consider drafting temporary leave policies to address EFMLEA and EPSLA updates

Attendance / Time off Policies

Compensation & Bonus Policies

Remote Work Policies

Safety Policies

In addition to your current safety policies, consider updating your policy to include safe practices during the pandemic

Place posters throughout workspaces as reminders

Create safety policies for common work areas such as lunch rooms, break rooms, coffee stations, bathrooms and copy machine/postage areas

Review safety policies with employees and provide additional training if needed

Travel Policies

If travel is required for the employee to perform essential job duties, revise the policy to determine what is essential v. non-essential travel

Make sure your policy covers any federal and state requirements regarding travel and quarantine

57

58

Page 30: The Path Forward- ELB revisions€¦ · •Z } ] v P v Z } ] v P K µ ] } v o / v i µ ] v / o o v ~ î õ &Z W í õ ì ð "N^alA_Lq^ SSNJpVvN NA]pUJAlN 0NmiVlApaly -lapNJpVa_ __qA]

4/28/2020

30

Communication is Key

• New policies and procedures should be circulated to all personnel.

• Provide training on new procedures and policies

• Get signed and dated acknowledgements

• Plan for if someone is exposed

Questions?

[email protected]

[email protected]

[email protected]

[email protected]

59

60

Page 31: The Path Forward- ELB revisions€¦ · •Z } ] v P v Z } ] v P K µ ] } v o / v i µ ] v / o o v ~ î õ &Z W í õ ì ð "N^alA_Lq^ SSNJpVvN NA]pUJAlN 0NmiVlApaly -lapNJpVa_ __qA]

4/28/2020

31

References/Sources

Where to get help references•Center for Disease Control Coronavirus Index hbps://www.cdc.gov/coronavirus/2019-ncov/index.html• CDC Interim Guidance for Businesses and Employers to Plan and Respond to

COVID-19hbps://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html• Occupational Safety and Health Administration Guidance on

Preparing Workplaces for COVID-19hbps://www.osha.gov/Publications/OSHA3990.pdf•World Health Organization Coronavirus Index hbps://www.who.int/emergencies/diseases/novel-coronavirus-2019

61

62

Page 32: The Path Forward- ELB revisions€¦ · •Z } ] v P v Z } ] v P K µ ] } v o / v i µ ] v / o o v ~ î õ &Z W í õ ì ð "N^alA_Lq^ SSNJpVvN NA]pUJAlN 0NmiVlApaly -lapNJpVa_ __qA]

4/28/2020

32

Where to get help references• CDC Public Health Recommendations for People in U.S. Communities Exposed to

a Person with Known or Suspected COVID--19, other than Health Workers or other Critical Infrastructure Workers

hbps://www.cdc.gov/coronavirus/2019-ncov/php/public-health-recommendations.html• CDC Interim Guidance for ImplemenLng Safety PracLces for Critical

Infrastructure Workers Who May Have Had Exposure to a Person with Suspected or Confirmed COVID--19

hbps://www.cdc.gov/coronavirus/2019-ncov/community/critical-workers/ implementing-safety-practices.html• Discontinuation of Isolation for Persons with COVID-19 Not in Healthcare Settingshbps://www.cdc.gov/coronavirus/2019-ncov/hcp/disposiLon-in-home-patients.html

Where to get help --references• Modes of transmission of virus causing COVID-19hbps://www.who.int/news-room/commentaries/detail/modes-of-transmission-of-virus-causing-covid-19-implications-for-ipc-precaution-recommendations• Cleaning and disinfecting your facilityhbps://www.cdc.gov/coronavirus/2019-ncov/community/organizations/cleaning-disinfection.html• CDC Implementation of Mitigation Strategies for Communities with Local

COVID-19 Transmissionhbps://www.cdc.gov/coronavirus/2019-ncov/downloads/community-mitigation-strategy.pdf•What You Should Know About the ADA, the RehabilitaLon Act, and COVID-19 hbps://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm

63

64

Page 33: The Path Forward- ELB revisions€¦ · •Z } ] v P v Z } ] v P K µ ] } v o / v i µ ] v / o o v ~ î õ &Z W í õ ì ð "N^alA_Lq^ SSNJpVvN NA]pUJAlN 0NmiVlApaly -lapNJpVa_ __qA]

4/28/2020

33

Responsible Restart Ohio

https://coronavirus.ohio.gov/wps/portal/gov/covid-19/responsible-restart-ohio/

https://player.vimeo.com/video/397856411

65

66