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Can you mandate employees are tested for COVID-19?

by Danielle Kane | Jun 12, 2020 12:15:05 PM

Employers are struggling to reopen their doors in careful fashion as the country continues to grapple with the ripple effects of COVID-19. Top of mind for most business owners is figuring out what new policies they can legally mandate to keep their employees safe.

Better Business Bureau Northwest + Pacific confirmed that yes, business owners can legally mandate their employees be tested for COVID-19 before allowing them to return to work, according to Aaron Goldstein, partner at the law firm of Dorsey & Whitney.

However, Goldstein cautions business owners to think not only of legal ramifications, but public relations ramifications, too. “PR considerations are now legal considerations,” he asserted. Those who don’t adapt or who look like they are not adapting in the appropriate way from a PR-perspective, could suffer massive economic consequences.

Goldstein noted this is uncharted territory for everyone. And legally, what we’re seeing instituted in the workplace is unprecedented. Even laws that exist for prior diseases, such as Swine Flu, don’t apply.

So, without precedents set, and without prior cases for lawyers to refer to, everyone begins to operate “in good faith,” Goldstein said. Making it even more important that companies are perceived on the right side of this pandemic, socially – not just legally. 

“Companies must adapt to what is the new abnormal,” he said, adding that before you require all employees to be tested for this novel strain of coronavirus, consider how it looks, not just if you’re allowed to do it.

It’s a physically uncomfortable test that you may not want to subject your employees to. Goldstein advises that employers think about how necessary it is depending on where everyone works – if it’s a facility where people work in close proximity and risk of infection is high, then employers might want to mandate the test. But, if you’re able to space out or there are not many people in the office at a time, it probably isn’t necessary.

Goldstein also provide clarity on the following:

  • Yes, you can screen employees for symptoms at the start of their shift
  • Yes, you can take their temperatures
  • Yes, you can require they sign up for a notification system to track exposure

How can employers really show people they are trying to do the right thing? Go above and beyond what the Center for Disease Control (CDC) is requiring. Goldstein suggests the following:

  • Can you increase physical distancing to 15 feet?
  • Can you stagger shifts to be well below the allowed 25% capacity?
  • Can you disinfect all touched surfaces twice a day, not just once?

Employers must not only take steps to show great care and protect staff, but they absolutely must document those steps and have records of everything they have done to make the workplace safe. This is imperative should lawsuits arise.

BBB NW+P has also been hearing a lot of questions around the issue of potential lawsuits and employee rights. The million-dollar question: Can an employer be sued for not taking adequate precautions against COVID-19?

The answer – unlikely.

Legally, what we’re talking about here is the concept of “informed consent,” according to Goldstein. If business owners communicate with employees what they’re doing to keep them safe, document new policies, post signage, share and enforce CDC guidelines, and talk openly about risks, exposures and employee concerns in the workplace, then those employees coming into work are making that decision on their own with the knowledge you’ve given them, therefore consenting.

So, if you’re next question was, should I make my employees sign a waiver? The answer is no. That is typically not going to be necessary.

Goldstein shared a similar sentiment about concerns over the Occupational Safety and Health Administration (OSHA). As of June 9, there has only been one OSHA citation regarding COVID-19, illustrating that OSHA is not bringing down the hammer on employers who do not comply with CDC guidelines.

Regardless of if you agree or disagree with that, it is important to understand your state’s guidance for enforcement of CDC and OSHA guidelines. For example, in Washington, employers will first get a warning letter giving them a chance to fix the violation. And even beyond that, Goldstein noted most employers will get multiple strikes before the issue is elevated.

  • OSHA’s language is as follows, as of April 13:  OSHA high risk vs moderate risk (i.e. healthcare vs. retail) – All formal complaints alleging exposure where employees are engaged in medium or lower risk exposure tasks (i.e. billing clerks) will not normally result in onsite inspection.

Should an employee get sick with COVID-19 at work, the outcome would most likely follow a normal process for workers compensation.

Still, Goldstein urged employers to think about how multiple violations would be received by employees. These are the types of reputational risks business owners must be prepared for and underlines why doing the right thing will be of the utmost importance.

To see the full webinar with Aaron Goldstein, click here.

To get up-to-date information from Dorsey and Whitney, click here.

Disclaimer: Laws around COVID-19 and compliance are changing rapidly. It is the business owner’s responsibility to stay updated. Do not rely on this text as legal counsel and check in with your own counsel before taking action.

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