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05 August 2020
Reopening, just like the restrictive measures originally put in place in or around March 2020, has been taking place on a state-by-state basis. In May 2020 and June 2020, all 50 states began to reopen in some way after implementing lockdown restrictions. Many states that have instituted reopening measures have adopted a phased approach, electing to reopen industries at different rates.
States have imposed their own obligations on employers as part of their reopening plans, in keeping with guidance provided by the Equal Employment Opportunity Commission (EEOC), a federal agency tasked with enforcing federal anti-discrimination laws, and the Centres for Disease Control and Prevention (CDC). Employer requirements and best practices depend on the employer's locations of operation and type of business but, at a high level, there are general trends with respect to state-imposed employer obligations, including:
Many if not all states that have provided employer guidance require employers to take daily health checks or test employees. In many states, employees may be able to self-screen for symptoms at home, provided that they verify with their employer that they have no COVID-19 symptoms on entry to the workplace. Should an employer opt to take employees' temperatures on entry to the workplace, testing must align with the confidentiality requirements and protections set out in the Americans with Disabilities Act (ADA).
Under the ADA, information gleaned from symptom screenings must be maintained as a confidential medical record. Although taking an employee's body temperature constitutes a medical examination, the EEOC has stated that employers may do so because of COVID-19's community spread. Further, the EEOC has also cautioned employers that the ADA requires medical information about employees to be stored separately from their personnel file; COVID-19-related medical information may be stored in existing medical files. Employers must also keep daily temperature checks confidential. However, an employer may disclose the identity of an employee that has contracted COVID-19 to a public health agency.
Maintaining safe working conditions also requires employers to keep workplaces free from discrimination. To that end, the EEOC has advised employers that it may be helpful to communicate to their workforces that fear, anger and frustration caused by the COVID-19 pandemic should not be misdirected against individuals based on a characteristic protected by federal anti-discrimination laws (ie, race, national origin, colour, sex, religion, age, disability or genetic information). The EEOC recommends employers communicate to their workforce that claims of discrimination or harassment will be reviewed promptly and appropriate action taken as quickly as possible. It also suggests that managers be alert to demeaning, derogatory or hostile remarks directed at employees who are or are perceived to be of Chinese or other Asian national origin, including about COVID-19 or its origins.
States that have provided reopening guidance for employers also require that employers maintain clean workplaces in keeping with CDC sanitisation guidance. The CDC has provided a general framework based on:
Almost all states require employers to develop, disseminate and implement a plan that details how to clean and disinfect high-traffic areas. The plan should include how to clean and disinfect areas in the event that an employee with COVID-19 symptoms has worked in the workplace, as well as protocols to be followed by potentially exposed employees.
Particular requirements on the use of personal protective equipment vary by state and industry. Many if not all states require the use of a mask or other face covering when employees are in the workplace and cannot maintain proper social distancing (ie, six feet or 1.83 metres distance). Further, employees in certain businesses (eg, retail) must wear a mask or face covering and gloves when interacting with customers.
All states have advised employers to encourage teleworking where possible, even at more advanced reopening phases.
For further information on this topic please contact Brian S Cousin, Richard I Scharlat or Christina S Dumitrescu at McDermott Will & Emery's New York office by telephone (+1 212 547 5400) or email (firstname.lastname@example.org, email@example.com or firstname.lastname@example.org). Alternatively, contact Manuel Rajunov at McDermott Will & Emery's Texas office by telephone (+1 214 295 8000) or email (email@example.com). The McDermott Will & Emery website can be accessed at www.mwe.com.
Sarah Schanz, associate, assisted in the preparation of this article.
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