Business and Legal Insights

The CDC and the EEOC have recently issued new guidance relating to COVID-19 in the workplace, which is summarized below. Our attorneys remain willing and able to assist clients with any COVID-19 related workplace issues as needed. Please contact Mary Ruth Houston or a member of the Labor & Employment practice group if you need more information.

New CDC Guidance on Essential Worker Return-to-Work Standards after Exposure

The CDC has issued new guidance that significantly relaxed its previous guidance on returning critical infrastructure workers to work after being potentially exposed to COVID-19 (this new guidance can be found here).

The new guidance is applicable to “critical infrastructure workers” who were potentially exposed to COVID-19. “Critical Infrastructure Workers” are defined as workers in 16 different sectors of work, including, but not limited to law enforcement, 911 call center employees, Fusion center employees, hazardous material responders, janitorial staff, transportation, critical manufacturing, energy and government facilities.

Previous CDC guidance recommended that any worker having “potential exposure” to COVID-19 be sent home for a period of up to 14 days.

The CDC’s new guidance states that critical infrastructure workers who were potentially exposed but remain asymptomatic are now advised that they can return to work so long as the employee and the employer follow additional precautions suggested by the CDC, which include:

• • • That employers measure the employee’s temperature and assess symptoms prior to permitting the worker to resume work, ideally before they enter the workplace facility
    • That the employer disinfect all workplace areas routinely
    • That the employee self-monitors for symptoms under the supervision of the employer’s occupational health program
    • That the employee wear a facemask at all times while in the workplace for 14 days after past potential exposure
    • That the employee maintain a six-foot distance from others and otherwise observe social distancing in the workplace as duties permit

New EEOC Guidelines on Employee Medical Confidentiality and ADA Accommodations

The U.S. Equal Employment Opportunity Commission (EEOC) enforces the nation’s employment non-discrimination laws (including pandemic antidiscrimination laws) while ensuring their activities are consistent with public health guidelines.

The EEOC recently clarified certain questions with respect to the confidentiality of medical information of employees, including:

• That employers are permitted to store employee medical information relating to COVID-19 in their existing medical files, provided that the employer store such files separately from the employee’s personnel file, and limit the access to such confidential information
• That an employer who conducts daily temperature checks of employees may maintain a log of the results, so long as the log is maintained as confidential
• That an employer may disclose the name of an employee that has COVID-19 to a public health agency
• That a temporary staffing agency or contractor may notify an employer regarding an employee’s COVID-19 diagnosis and may disclose the name of the employer

The EEOC also offered additional guidance regarding requests for ADA accommodations related to COVID-19. The ADA may impose a duty upon employers to reasonably accommodate employees or individuals whose disability puts him/her at greater risk for exposure and therefore requests to eliminate such exposure, even where such an employee cannot work remotely from home. Examples of such accommodations that may apply in these circumstances are: changes to the work environment such as using plexi-glass, one-way walkways, or other barriers; modifying work schedules or assignments; and temporary transfers to different positions. Also, the ADA may impose a duty on employers to reasonably accommodate employees with preexisting mental illnesses or disorders which have been exacerbated by the pandemic.