Employers operating during the pandemic have responsibilities they have not had before. They’re sometimes taking employees’ temperatures and asking them questions to determine the state of their health before they walk in the door. This is, in part, to ensure the safety of all employees working in close proximity to one another and to mitigate legal liability, but there’s another reason to be diligent now.
“Trust has to be there because people are really frightened about this,” says Peter J. Olmsted, director of executive talent solutions at Clark Schaefer Hackett. “Employers need to be as transparent as possible and put the safety and security of their employees first. If they do that, they should not have any undue legal risk.”
Smart Business spoke with Olmsted about the responsibilities employers have to their employees, legal and otherwise, through the pandemic.
How does a company typically learn an employee has contracted COVID-19?
Generally, under the Americans with Disabilities Act, you can’t ask employees certain questions about their health, except when there’s a substantial threat to the safety of employees or others. So, employers can ask their employees if they have COVID-19.
Employers could ask employees health questions as part of their screening protocol. Much like employers can require employees to have their temperature taken, they can also ask employees if they’ve come in contact with anyone known or suspected to have COVID-19 or if they’re feeling well today, and employees must respond in order to work and receive pay for that day.
What are the employer’s obligations when an employee tests positive for COVID-19?
Employers have an obligation to make sure that anyone who had any potential exposure to a person infected by COVID-19 is notified of the location and the timing of that interaction, but not the specific person’s name. That has to be kept confidential.
There are other actions employers can take that are not required but can help them to have the best outcomes while maintaining a positive culture. For example, there may not be an obligation to communicate updates to employees every day regarding COVID-19 cases, but it’s probably a good idea. If no one tested positive, tell them that as well. This can go a long way toward keeping up trust between employers and employees.
What required reporting exists for companies that have confirmed COVID-19 cases?
Employers are required to immediately report the employee, or even a customer who had the virus and was working at or visiting an employer’s facility, to the Ohio Health Department. The local health department may also require employers to identify anyone potentially exposed to those infected individuals to help facilitate contact tracing. It may also be necessary to shut down a facility and bring in professionals to do a deep cleaning, then reopening in consultation with the local health department.
What legal risks exist for a company once an employee has contracted the virus?
The liability issue has yet to be fully tested in court, but there are mistakes employers can make that would put them more at risk of being held liable. For example, if an employer doesn’t report cases to local and state health departments, it could be fined. Employers are also required to report cases to OSHA when they learn someone has entered their facility who tested positive for a COVID-19 illness. Another issue is not taking reasonable steps to protect employees — steps such as social distancing, mask wearing and regular cleanings. Employers can also get in trouble for not complying with federal or state guidelines, such as the Families First Coronavirus Response Act.
Employers should show that they care about their employees and be proactive when it comes to mitigation steps. That means staying up to date, because the laws are changing every day, and overcommunicating with employees. Consider that the actions employers take today to protect employees are going to be remembered by those employees in the future when work returns to normal.
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