COVID-19 Update: EEOC and OSHA Issue Supplemental Reopening Guidance

The EEOC and OSHA recently issued supplemental guidance to help employers navigate reopening the workplace during the COVID-19 pandemic.  The latest updates from both agencies will be addressed below.  A discussion of prior reopening guidance from OSHA and the EEOC can be found here and here.

OSHA FAQs on Masks and Face Coverings

In light of the fact many employees will be required to wear masks or face coverings for the first time in the workplace, on June 10, 2020, OSHA issued supplemental guidance in the form of FAQs.  That new guidance can be found here.

When addressing the need for PPE as part of the reopening process, employers need to understand the difference between cloth face coverings, surgical masks and respirators.  The CDC has a comparison chart for surgical masks and respirators that can be accessed here.  Stated briefly, respirators provide better protection than surgical masks because of the fit and ability to filter out small aerosol particles.  Cloth face coverings, which do not qualify as PPE under OSHA’s guidance, are still encouraged because they may help limit the spread of COVID-19 when social distancing is not possible.

In terms of which employees need PPE and which employees should be encouraged to wear cloth face coverings, OSHA provides an occupational risk pyramid for COVID-19 transmission that includes four categories.  Lower exposure risk applies to those jobs that do not require contact with people known or suspected to be infected with COVID-19.  These workers have minimal contact with the public and fellow workers.  OSHA’s examples of lower risk exposure positions include:

• Remote workers (i.e., those working from home during the pandemic).
• Office workers who do not have frequent close contact with coworkers, customers, or the public.
• Manufacturing and industrial facility workers who do not have frequent close contact with coworkers, customers, or the public.
• Healthcare workers providing only telemedicine services.
• Long-distance truck drivers.

If a position falls into the lower risk category, additional PPE to protect against COVID-19 is likely not necessary, but cloth face coverings may be appropriate.

Medium exposure risk includes jobs that require frequent and close contact with people who may be infected, but who are not known to have or suspected of having COVID-19. OSHA identifies the following as workers that fall into the medium exposure risk group:

• Those who may have frequent contact with travelers who return from international locations with widespread COVID-19 transmission.
• Those who may have contact with the general public (e.g., in schools, high population density work environments, and some high-volume retail settings).

For workers in the medium risk category, PPE in the form of gloves, gown and surgical face mask may be necessary, but these positions will not normally require a respirator.

High exposure risk positions include jobs with a high potential for exposure to known or suspected sources of COVID-19.  OSHA identifies the following as high risk positions:

• Healthcare delivery and support staff (hospital staff who must enter patients’ rooms) exposed to known or suspected COVID-19 patients.
• Medical transport workers (ambulance vehicle operators) moving known or suspected COVID-19 patients in enclosed vehicles.
• Mortuary workers involved in preparing bodies for burial or cremation of people known to have, or suspected of having, COVID-19 at the time of death.

Very high exposure risk includes those positions with a very high potential for exposure to known or suspected sources of COVID-19 during specific medical, postmortem, or laboratory procedures. OSHA includes the following in the very high risk category:

• Healthcare workers (e.g., doctors, nurses, dentists, paramedics, emergency medical technicians) performing aerosol-generating procedures (e.g., intubation, cough induction procedures, bronchoscopies, some dental procedures and exams, or invasive specimen collection) on known or suspected COVID-19 patients.
• Healthcare or laboratory personnel collecting or handling specimens from known or suspected COVID-19 patients (e.g., manipulating cultures from known or suspected COVID-19 patients).
• Morgue workers performing autopsies, which generally involve aerosol-generating procedures, on the bodies of people who are known to have, or are suspected of having, COVID-19 at the time of their death.

For employees working in a high risk or very high risk position, PPE is required.  Most of these employees will need to wear gloves, a gown, a face shield or goggles, and either a surgical face mask or a respirator.  In terms of when a respirator is needed, OSHA recommends that any employee working closely with (which means either in contact with or within 6 feet of) patients known to be, or suspected of being, infected with COVID-19, should be wearing a respirator.

Returning to OSHA’s new FAQs on face coverings, OSHA provides detailed information on using face coverings in the workplace, including:

• The differences between face coverings, surgical masks, and respirators. OSHA’s comments confirm that a cloth face covering does not qualify as PPE sufficient to replace the use of surgical masks or respirators when required.  OSHA confirms this is the case even if an employer has difficulty obtaining respirators;
• Since cloth face coverings do not qualify as PPE, employers are not required to provide them for an employee’s use under the OSH Act. OSHA notes, however, that consistent with the CDC guidelines, it recommends employers encourage the use of cloth face coverings for all employees that are otherwise not required to wear PPE and that providing employees with cloth face coverings may help meet that recommendation.  OSHA’s FAQ on this point includes examples of when wearing a cloth face covering may be inconsistent with workplace safety given the nature of a particular position, thus confirming employers should take this into consideration when deciding whether to require the use of face coverings in the workplace;
• Even if employees are required or encouraged to wear cloth face coverings, social distancing is still required; and
• If employees are wearing cloth face coverings in the workplace, the CDC’s guidance on washing and care of the face covering should be followed.

In light of the fact that only low risk positions do not require PPE to protect against COVID-19 transmission, employees performing tasks that fall into that category are the only group that should be considered for wearing cloth face coverings in the workplace.

When evaluating a position for the risk level and corresponding need for PPE, employers should keep in mind that PPE is only one form of protection recommended by OSHA and that other workplace controls need to be considered and evaluated too.  OSHA also reminds employers that the particular task of an employee dictates the risk level, which means a position could have different risk levels that need to be accounted for depending on the specific task at issue.

Updated Guidance from the EEOC

On June 11, 2020, the EEOC updated its question-and-answer technical assistance document for COVID-19 issues.  That updated document can be found here.  The EEOC issued nine new questions and answers that addressed questions on ADA accommodations, pandemic-related harassment, and potential discrimination concerns raised by COVID-19.  Each topic will be addressed in turn.

The new information on COVID-19 and ADA accommodations was focused on three areas.  First, the EEOC confirms that an employee is not entitled to an accommodation to protect a family member from COVID-19 exposure.  To give context, when an employee learns she is required to return to the workplace and lives with a family member that is at a higher risk for COVID-19 complications, that employee may resist returning for that reason or request a reasonable accommodation based on the disability of a family member.  The EEOC’s recent comments on this point make clear that the accommodation process applies to an employee’s disability, not that of a family member.  While an accommodation is not required under the ADA, the EEOC notes the employer is free to provide flexibility in this regard, so long as flexible working arrangements are offered consistently to all classes of employees.

Keeping with the theme of flexibility, the EEOC also confirms that employers are free to invite employees to request flexible work arrangements or accommodations prior to the scheduled return to the worksite.  The EEOC notes that this invitation should be issued to all employees with a return to work date, or to all employees generally if no return date is set.  The notice should provide employees general guidance on why an accommodation may be needed, that each request will be considered on a case-by-case basis and provide clear instructions on who to contact and how that designated person can be reached.  Note that the designated contact person should be well-versed in the accommodations available for COVID-19.  The best practice is to provide employees with a written form to complete detailing the request for the accommodation.

The last new piece of information on accommodations addresses screening for COVID-19 prior to entering the worksite.  As discussed in the prior blog, the EEOC has issued detailed guidance on the screening process.  The expanded guidance confirms that, if an employee requests an alternative method of screening because of a medical condition, that qualifies as a request for a reasonable accommodation under the ADA, assuming the employee can substantiate that the medical condition is a disability.  This means an employer will need to engage in the interactive process to determine if the request can be reasonably accommodated, while still ensuring the screening is completed to keep the workplace safe.

The EEOC also expands its comments on pandemic-related harassment.  In response to a question on how best to respond to harassment related to COVID-19 against employees perceived to be Asian, the EEOC stresses that managers need to be educated on this point and alert for any type of harassment in the workplace.  It makes no difference whether the harassment is done electronically by an employee that is teleworking—that must be treated the same as harassment that occurs in-person at the worksite.  The EEOC also notes that, in addition to fellow employees, the source of harassment can be customers, clients, patients, or their family members, all of which can amount to actionable harassment under Title VII.  The EEOC suggests that employers consider reminding the workforce that this type of harassment is prohibited under the law, as well as making sure managers are properly trained to recognize and address these issues before they reach the level of unlawful discrimination.

Finally, the EEOC’s new guidance addresses potential age, sex and pregnancy discrimination claims that may be triggered by COVID-19 issues.  For employees older than 65 or pregnant, the EEOC explicitly states that the employer cannot involuntarily exclude those workers from the workplace, even if the decision is based on benevolent reasons given those groups may be at a higher risk of COVID-19 complications.  The EEOC also confirms that the Age Discrimination in Employment Act does not include the right to an accommodation based solely on an employee’s age (though an older employee may have a medical condition that qualifies as a disability entitled to an accommodation under the ADA.)  Pregnant employees may also be entitled to accommodations in certain circumstances.

As for potential sex discrimination claims, the EEOC responds to a question about providing benefits to employees with school-age children because of school closures during the pandemic.  The EEOC’s response reminds employers that female employees cannot be treated more favorably than male employees based on the assumption they may have greater responsibility for childcare.  Based on that, if employers are offering benefits or flexibility for employees that are parents of younger children, those benefits should be offered to employees uniformly regardless of sex.

The NBKL blog is provided for informational purposes; we are not giving legal advice or creating an attorney/client relationship by providing this information.  Before relying on any legal information of a general nature, you may consider consulting legal counsel as to your particular facts and applications of the law.