In Part 1 of this blog, we discussed the new interim guidance for meat processing plants. To combat concerns of a devastating reduction in our food supply chain, President Trump issued an Executive Order requiring processing plants to stay open. Despite that order, some employees at these processing plants have expressed an intent not to return to work. So, what options do employers have if their workers refuse to work?
First, as the interim guidelines suggest, employers should follow the guidance that has been issued for meat processing plants both by their state and by the CDC and OSHA. Those guidelines will help protect employees from exposure to the virus and prepare employers to maintain critical operations with a reduced workforce. Additionally, there is pre-existing guidance on this issue from prior outbreaks. In response to the 2009 H1N1 Influenza (“swine flu”) outbreak, the Occupational Safety and Health Administration (“OSHA”) developed guidance addressing employee protections. These guidelines clarify when an employee may refuse to come to work or perform work due to a concern about their health and safety in the workplace. Generally speaking, this older guidance states that an employer cannot discriminate against employees who:
(1) Refuse, in good faith, to expose themselves to a dangerous job condition; and
(2) Believe they have no reasonable alternative but to avoid the workplace.
Critical to this guidance is that the “reasonable person” standard applies: the employee’s fear must be one that a reasonable person in similar circumstances would conclude poses a real danger of death or serious injury. Further, there must be insufficient time to eliminate the danger through regularly statutory enforcement channels. If these factors are met, an employer cannot discipline or discharge said employee. On the other hand, if these factors are not met, employees are expected to come to work and perform their job functions.
In addition, employers should check their state COVID-19 orders. Some states, such as Michigan, have ordered that employers may not terminate or discipline employees for staying home from work if they or someone close to them tests positive for COVID-19 or exhibits its symptoms.
Keep in mind that employers must still follow pre-existing OSHA and federal and state anti-discrimination laws. For example, taking an employee’s temperature has been considered a “medical examination” under the ADA and is generally prohibited. However, the EEOC recently issued guidance temporarily relaxing this standard and permitting an employer during the COVID-19 pandemic to take the temperature of its employees in certain circumstances. Helpfully, the interim guidelines expressly permit meat processing facilities to check their employees’ temperature. However, other employers in the agricultural industry should check their state and any applicable CDC or OSHA guidance for their industry to determine if monitoring their employees’ temperature is warranted and/or permitted.
As indicated in Part 1 of this blog, the administration is developing what it refers to as liability guidelines that processing plants can implement. Presumably, these liability guidelines will address how employers can protect themselves from liability in the event an employee or employees contract the virus. In the meantime, employers should follow the current guidance below.
If an employee is diagnosed with COVID-19 in your workplace, employers should:
- Notify potentially exposed employees, clients, vendors, or other guests;
- If required by your state or local government, notify the local or state health authorities;
- Protect the employee’s privacy and do not disclose the identity of the employee, or any health information gathered related to their condition;
- Keep any health care documentation and any documents gathered during the investigation in a private health folder;
- Do not allow the diagnosed employee to return to work before symptom-free for 72 hours or cleared by a physician or tested negative;
- Require employees to monitor themselves for symptoms and stay home if sick;
- Send home any sick employees, whether or not they have been diagnosed with COVID-19;
- Clean and disinfect the workplace used by the diagnosed employee (the CDC has issued guidance on how to clean and disinfect your facility).
Visit Fox Rothschild’s COVID-19 Resource Center for more guidance on how to navigate employment decisions related to COVID-19 or contact us directly for assistance.