Leslie A. Farber
How to Balance Employee Safety with Privacy
Operating a business is always a challenge, and this is true now more ever. If your business is preparing to reopen after having been closed due to the COVID-19 pandemic, it is important to make this transition as safe as possible for your employees and for your customers and clients – while at the same time protecting their privacy.
For many business owners, the key to reopening successfully will be prioritizing the health and safety of both employees and customers in a clear and discernable way. Any new guidelines or protocols put in place at the federal, state and/or local level will need to be adhered to, enforced, and effectively communicated to your staff and patrons.
A good first step towards resuming operations is to develop a comprehensive COVID-19 safety plan. The U.S. Labor Department has issued an industry-by-industry series of recommendations that include improving ventilation; staggering shifts or alternating work days to reduce the number of employees in a facility at one time; and training workers in how to wear and remove protective clothing and equipment.
States and municipalities also have issued regulations that business owners must follow. These guidelines are subject to change as COVID-19 evolves, so it can be challenging for business owners to stay up to date. However, any business safety plan should address a number of basic issues:
Social Distancing: The Centers for Disease Control and Prevention (CDC) guidelines require at least six feet of space between individuals whenever possible. This may mean installing physical barriers in your offices or facilities, changing the layout to create more space between workstations, and closing communal spaces to minimize unnecessary interactions.
Maintaining Employee Health: Before your employees return to the workplace, you will need to create a wellness plan to protect them and monitor their health. A basic wellness plan should include the following:
· Personal protective equipment (PPE) or face coverings. The Occupational Safety and Health Administration (OSHA) requires certain industries to use standardized PPE like N95 masks. If yours is not one of them, you may still want to provide cloth face coverings, masks, and/or gloves for employees to wear in the workplace.
· Temperature and wellness checks to enter a workplace. Experts believe that catching an elevated temperature early on mitigates the risk of an asymptomatic individual spreading the virus. Temperature checks and symptom surveys are expected to be a requirement for many types of businesses.
· Minimizing person-to-person contact: If your business is customer-facing such as a retail store or service business, it may be wise to implemented steps to reduce physical contact. Options such as curbside pickup and cashless payment can help protect your staff and your customers.
While temperature taking and health screening are seen as part of a broader effort to mitigate risk, there are legal aspects to consider. The Americans with Disabilities Act (ADA) prohibits employers from medical examinations unless they are job-related and consistent with business necessity. However, in mid-March the Equal Employment Opportunity Commission (EEOC) issued guidance that allows organizations to ask employees if they have experienced COVID-19-consistent symptoms and to check their temperatures.
Since then, governors and public health officials across the country have implemented stringent measures, in some cases mandating daily health screening of employees. New Jersey requires temperature and other health screenings for agriculture employers as well as for restaurants and other food and beverage establishments. In New York, temperature screenings are recommended but all reopening businesses are required to adopt the NY Forward Safety Plan, which includes mandatory health screening for employees and for essential visitors.
All screenings are to be conducted in accordance with any applicable privacy laws and regulations, and employers need to be clear about the protocols they must follow. For instance, temperature readings should be kept confidential and the person administering them should be trained on the procedure. It is critical to ensure that testing is not conducted selectively, and, unless instructed otherwise, employee or customer medical information should not be stored.
Legal issues related to employee health screenings may include potential wage and hour, discrimination, and privacy concerns. For guidance on which regulations and legal issues apply to your operations, call us at 973-509-8500 x213 or email LFarber@LFarberLaw.com.
The contents of this writing are intended for general information purposes only and should not be construed as legal advice or opinion in any specific facts or circumstances.