OSHA Requires More Employers to Determine Whether Employee COVID-19 Cases are Work-Related

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By Kathleen J. Jennings (kjj@wimlaw.com)

Remember when we told you that only health-care employers, corrections facilities, and emergency-response providers were required by OSHA to determine whether an employee’s COVID-19 was work-related?  Well, other types of businesses had better pay attention because OSHA has issued some new guidance that expands the recording of COVID-19 cases.

In new interim guidance issued May 19, 2020, OSHA now requires all employers who are required to keep OSHA injury and illness logs, not just health-care employers, corrections facilities, and emergency-response providers, to make a determination if an employee’s COVID-19 illness is work related.

Under OSHA’s recordkeeping requirements, COVID-19 is a recordable illness, and thus employers are responsible for recording cases of COVID-19, if:

  1. The case is a confirmed case of COVID-19, as defined by the Centers for Disease Control and Prevention (CDC);
  2. The case is work-related, as defined by 29 CFR § 1904.5; and
  3. The case involves one or more of the general recording criteria set forth in 29 CFR § 1904.7 (such as death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or loss of consciousness).

OSHA recognizes that it may be difficult for employers to determine if a case of COVID-9 is “work-related.”  Therefore, OSHA is exercising enforcement discretion to assess employers’ efforts in making work-related determinations. In determining whether an employer has complied with this obligation and made a reasonable determination of work-relatedness, OSHA CSHOs will apply the following considerations:

  • The reasonableness of the employer’s investigation into work-relatedness. Employers, especially small employers, should not be expected to undertake extensive medical inquiries, given employee privacy concerns and most employers’ lack of expertise in this area. It is sufficient in most circumstances for the employer, when it learns of an employee’s COVID-19 illness, (1) to ask the employee how he believes he contracted the COVID-19 illness; (2) while respecting employee privacy, discuss with the employee his work and out-of-work activities that may have led to the COVID-19 illness; and (3) review the employee’s work environment for potential SARS-CoV-2 exposure. The review in (3) should be informed by any other instances of workers in that environment contracting COVID-19 illness.
  • The evidence available to the employer. The evidence that a COVID-19 illness was work-related should be considered based on the information reasonably available to the employer at the time it made its work-relatedness determination. If the employer later learns more information related to an employee’s COVID-19 illness, then that information should be taken into account as well in determining whether an employer made a reasonable work-relatedness determination.
  • The evidence that a COVID-19 illness was contracted at work. CSHOs should take into account all reasonably available evidence, in the manner described above, to determine whether an employer has complied with its recording obligation. This cannot be reduced to a ready formula, but certain types of evidence may weigh in favor of or against work-relatedness. For instance:

o COVID-19 illnesses are likely work-related when several cases develop among workers who work closely together and there is no alternative explanation.

o An employee’s COVID-19 illness is likely work-related if it is contracted shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19 and there is no alternative explanation.

o An employee’s COVID-19 illness is likely work-related if his job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.

o An employee’s COVID-19 illness is likely not work-related if she is the only worker to contract COVID-19 in her vicinity and her job duties do not include having frequent contact with the general public, regardless of the rate of community spread.

o An employee’s COVID-19 illness is likely not work-related if he, outside the workplace, closely and frequently associates with someone (e.g., a family member, significant other, or close friend) who (1) has COVID-19; (2) is not a coworker, and (3) exposes the employee during the period in which the individual is likely infectious.

o CSHOs 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.

If, after the reasonable and good faith inquiry described above, 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, the employer does not need to record that COVID-19 illness. In all events, 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.

Kathleen J. Jennings is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2020 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

 

 

 

How Is An Employer Expected to Accommodate A Pregnant Worker?

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By Kathleen J. Jennings (kjj@wimlaw.com)

As we prepare for a possible post-coronavirus baby boom, it’s a good time to look at the Pregnancy Discrimination Act.

Some employers have carved out light duty jobs that are reserved for workers who have suffered work-related injuries.  These jobs are used to transition injured workers off of workers’ compensation benefits and back to work.  However, a new case out the Eleventh Circuit Court tells us that the employer that fails to offer these light duty jobs to pregnant employees with medical restrictions risks being liable for discrimination. (Durham v. Rural/Metro Corp. , 11th Cir., 18-14687, 4/17/20 ).

Durham was an emergency medical technician (“EMT”) whose job required her to lift 100 pounds regularly. When Durham became pregnant, her physician advised her to refrain from lifting more than 50 pounds. So Durham asked her employer, Rural/Metro Corp., for a temporary light-duty or dispatcher assignment for the duration of her pregnancy. Rural had provided these same accommodations to other EMTs who had suffered injuries on the job and were restricted to lifting no more than 10 or 20 pounds as a result. On the other hand, Rural had a policy of not granting such accommodations to employees who had been injured off the job. Rural also had a policy that allowed it to accommodate those with disabilities on a case-by-case basis.  Rural declined Durham’s request for accommodation, and Durham filed suit, alleging discrimination under the Pregnancy Discrimination Act (PDA).

The issue that was discussed in detail by the Eleventh Circuit was whether Rural accommodated others who were not pregnant but were “similar in their ability or inability to work”  to Durham.   The Court stated that  “the comparator analysis under the PDA focuses on a single criterion—one’s ability to do the job.”  Therefore, Durham’s temporary inability to lift more than 50 pounds and her colleagues’ inabilities to lift more than 10 or 20 pounds rendered Durham, and her colleagues injured on the job, equally unable to perform the 100-pound lifting duties of an EMT. Thus, Durham and her colleagues who were injured on the job were “similar in their ability or inability to work.”

The burden would then shift to the employer to show a legitimate, nondiscriminatory reason for treating the pregnant employee differently from non-pregnant employees.  The case was remanded back to the District Court for this analysis.

What does this mean for employers?  In the Eleventh Circuit (Georgia, Alabama, Florida), employers need to treat employees with pregnancy related medical restrictions similarly to other employees with medical restrictions when it comes to making accommodations at work.

Kathleen J. Jennings is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2020 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

 

When to Record COVID-19 Cases on An OSHA 300 Log

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By Kathleen J. Jennings (kjj@wimlaw.com)

How or when do employers record incidents of COVID-19 on their OSHA 300 logs?   On April 10, OSHA issued Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19) to help answer that question.

Under OSHA’s recordkeeping requirements, COVID-19 is a recordable illness, and employers are responsible for recording cases of COVID-19, if:

(1) the case is a confirmed case of COVID-19, as defined by Centers for Disease Control and Prevention (CDC);

(2) the case is work-related as defined by 29 CFR § 1904.5; and

(3) the case involves one or more of the general recording criteria set forth in 29 CFR § 1904.7 (an injury or illness that results in any of the following: death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or loss of consciousness).

How does an employer figure out if a case of COVID-19, which is highly contagious, is work-related?  The good news is that the majority of employers will not need to make that determination.  Only employers of workers in the healthcare industry, emergency response organizations (e.g., emergency medical, firefighting, and law enforcement services), and correctional institutions must continue to make work-relatedness determinations pursuant to 29 CFR § 1904. Until further notice, however, OSHA will not enforce 29 CFR § 1904 to require other employers to make the same work-relatedness determinations, except where:

  • There is objective evidence that a COVID-19 case may be work-related. This could include, for example, a number of cases developing among workers who work closely together without an alternative explanation; and
  • The evidence was reasonably available to the employer, whatever that means. OSHA offers examples of “reasonably available evidence” to include information given to the employer by employees, as well as information that an employer learns regarding its employees’ health and safety in the ordinary course of managing its business and employees. In other words, if an employer knows that it has a sick employee who is making other employees sick, this may apply. As a practical matter, however, it is going to be very difficult to pinpoint where and when a specific person was exposed to the virus.

According to OSHA, this new enforcement policy will help employers focus their response efforts on implementing good hygiene practices in their workplaces, and otherwise mitigating COVID-19’s effects, rather than on making difficult work-relatedness decisions in circumstances where there is community transmission.

OSHA also advises that COVID-19 is a respiratory illness and should be coded as such on the OSHA Form 300. Because this is an illness, if an employee voluntarily requests that his or her name not be entered on the log, the employer must comply as specified under 29 CFR § 1904.29(b)(7)(vi).

Kathleen J. Jennings is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2020 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

And Now A Word From the EEOC….

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By Kathleen J. Jennings (kjj@wimlaw.com)

With other federal agencies such as the DOL and OSHA issuing detailed guidance and rules in this time of COVID-19, the EEOC wants everyone to know that they are doing—not a whole lot.  Yesterday, they issued some Technical Assistance entitled What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.  This document updates more detailed guidance for a pandemic  that the EEOC issued back in 2009.  According to this new technical assistance, not only may employers lawfully take employee temperatures to screen for COVID-19, they may also ask employees if they are experiencing any symptoms of COVID-19, such as fever, chills, cough, shortness of breath,  sore throat, new loss of smell or taste as well as gastrointestinal problems, such as nausea, diarrhea, and vomiting. All medical information acquired in response to these questions must be maintained as confidential.

There are also some questions and answers, but for the most part, the EEOC defers to the CDC and public health authorities.

The EEOC has also temporarily suspended the issuance of charge closure documents unless a charging party requests them. Normally, when the EEOC closes a file, it issues a Notice of Right to Sue, and if a charging party wants to file a lawsuit, they must do so within 90 days from receipt of that Notice of Right to Sue.  Basically, the EEOC is not issuing Notices of Right to Sue unless a charging party asks for one, which is slowing down an already slow charge investigation and closure process.

Fear not, because the EEOC is likely to get very busy after the public health crisis passes.  Not only will they need to resolve the backlog of open cases, but right now, people can file charges with EEOC through its electronic portal.  We can expect to see charges filed by many laid off or furloughed employees who believe that these actions were discriminatory. In addition, we expect charges filed pursuant to the Americans With Disabilities Act arising out of accommodation requests or medical inquiries.

Pro Tip:  Right now, employers need to be ready for a possible onslaught of discrimination charges.  To that end, it is critical that employers prepare and preserve documentation to support the non-discriminatory reasons for their layoff and furlough decisions. In addition, make sure that all employee medical information is preserved as confidential, and do not be tempted to ask for any medical information beyond what is necessary to determine if the employee has been exposed to COVID-19 or for other reasons that are job-related and consistent with business necessity.  This is an unprecedented situation, so consulting with qualified counsel is more important than ever.

Kathleen J. Jennings is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2020 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

 

Critical Infrastructure Workers Exposed to COVID-19 No Longer Must Self-Quarantine, Says CDC

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By Kathleen J. Jennings (kjj@wimlaw.com)

This week, the CDC issued some Interim Guidance for Implementing Safety Practices for Critical Infrastructure Workers Who May Have Had Exposure to a Person with Suspected or Con­firmed COVID-19. This new Guidance applies to critical infrastructure workers, including personnel in 16 different sectors of work including:

  • Federal, state, & local law enforcement
  • 911 call center employees
  • Fusion Center employees
  • Hazardous material responders from government and the private sector
  • Janitorial staff and other custodial staff
  • Workers – including contracted vendors – in food and agriculture, critical manufacturing, informational technology, transportation, energy and government facilities

Previously, the CDC had recommended that workers exposed to COVID-19 self-quarantine for 14 days.  Now, in this latest Guidance, the CDC is relaxing that self-quarantine requirement and recommending that such workers can remain at work as long as they are asymptomatic and follow other procedures to prevent the spread of the virus. Specifically, the CDC now recommends as follows:

Critical Infrastructure workers who have had an exposure but remain asymptomatic should adhere to the following practices prior to and during their work shift:

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

If the employee becomes sick during the day, they should be sent home immediately. Surfaces in their workspace should be cleaned and disinfected. Information on persons who had contact with the ill employee during the time the employee had symptoms and 2 days prior to symptoms should be compiled. Others at the facility with close contact within 6 feet of the employee during this time would be considered exposed.

The CDC has a printable flyer for critical workplaces to post.

Remember, this guidance applies to persons who may have been exposed to COVID-19 but do not have symptoms of illness.  If an employee becomes ill or tests positive for COVID-19, he or she should be removed from the workplace and not allowed to return to work until the criteria to discontinue home isolation are met, in consultation with healthcare providers and state and local health departments.

Kathleen J. Jennings is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2020 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

Are You An Essential Worker?

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By Kathleen J. Jennings (kjj@wimlaw.com)

As more states, including Georgia, issue “shelter in place” orders in response to the COVID-19 virus that require all but essential workers to stay home, the question on everyone’s mind is:  am I an essential worker?  Look no further than the U.S Department of Homeland Security’s CISA ADVISORY MEMORANDUM ON IDENTIFICATION OF ESSENTIAL CRITICAL INFRASTRUCTURE WORKERS DURING COVID-19 RESPONSE.

Employees who are “essential workers” will be traveling to and from work at a time when most people have been been ordered to stay home.  The last thing that these people need is a ticket or citation just for going to work.  Employers should take steps to assist these employees in case they are stopped by law enforcement.  Employers can provide these essential employees with a document, on company letterhead, that describes the business and the reasons why this employee is an “essential employee” along with a contact name and number at the company if there are any questions.  Further, essential employees should be advised to have any badges issued by the employer available along with the document.

Employers of essential employees should also follow CDC and OSHA Guidelines to protect the health and safety of those employees.

Kathleen J. Jennings is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2020 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

What Kind of Documentation Can An Employer Request in Support of a COVID-19 Leave Request?

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By Kathleen J. Jennings (kjj@wimlaw.com)

One of the many questions employers have had about the Families First Coronavirus Relief Act (FFCRA) is this:  what kind of documentation can they request from employees to justify a request for paid leave or extended family and medical leave?  In a perfect world, an employer can take an employee at his/her word that he/she meets one of the qualifications for leave.  But let’s face it—we don’t live in a perfect world, so it is reasonable for an employer to request some kind of evidence to justify an employee’s request for leave.  So what can an employer ask its employees to provide by way of proof of a need for leave?

The Department of Labor (DOL) issued a Temporary Regulation on April 1 to help answer that question.

An employee must provide his or her employer documentation in support of paid sick leave or expanded family and medical leave. As provided in § 826.100, such documentation must include a signed statement containing the following information: (1) the employee’s name; (2) the date(s) for which leave is requested; (3) the COVID-19 qualifying reason for leave; and (4) a statement representing that the employee is unable to work or telework because of the COVID-19 qualifying reason.

Furthermore, an employee must provide the following additional documentation depending on the COVID-19 qualifying reason for leave.

  • An employee requesting paid sick leave under § 826.20(a)(1)(i) (Employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19) must provide the name of the government entity that issued the quarantine or isolation order to which the employee is subject.
  • An employee requesting paid sick leave under § 826.20(a)(1)(ii) (Employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19) must provide the name of the health care provider who advised him or her to self-quarantine for COVID-19 related reasons.
  • An employee requesting paid sick leave under § 826.20(a)(1)(iv) (Employee is caring for an individual who is subject to a Federal, State, or local quarantine or isolation order related to COVID-19 or directed to self-quarantine due to concerns related to COVID-19) to care for an individual must provide either (1) the government entity that issued the quarantine or isolation order to which the individual is subject or (2) the name of the health care provider who advised the individual to self-quarantine, depending on the precise reason for the request.
  • An employee requesting to take paid sick leave under § 826.20(a)(1)(v) (Employee is caring for his or her Son or Daughter whose School or Place of Care has been closed for a period of time, whether by order of a State or local official or authority or at the decision of the individual School or Place of Care, or the Child Care Provider of such Son or Daughter is unavailable, for reasons related to COVID-19) or expanded family and medical leave to care for his or her child must provide the following information: (1) the name of the child being care for; (2) the name of the school, place of care, or child care provider that closed or became unavailable due to COVID-19 reasons; and (3) a statement representing that no other suitable person is available to care for the child during the period of requested leave.

For leave taken under the FMLA for an employee’s own serious health condition related to COVID-19, or to care for the employee’s spouse, son, daughter, or parent with a serious health condition related to COVID-19, the normal FMLA certification requirements still apply.

Kathleen J. Jennings is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2020 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.