OSHA and Face Masks
Anyone who spends much time on social media has probably seen the claims that OSHA says it’s dangerous for people to wear cloth face masks. In light of these claims, OSHA has updated its guidance on this issue.
In response to the FAQ “Does wearing a medical/surgical mask or cloth face covering cause unsafe oxygen levels or harmful carbon dioxide levels to the wearer?” OSHA says:
No….[M]ost carbon dioxide particles will either go through the mask or escape along the mask’s loose-fitting perimeter. Some carbon dioxide might collect between the mask and the wearer’s face, but not at unsafe levels….
Some people have mistakenly claimed that OSHA standards … apply to the issue of oxygen or carbon dioxide levels resulting from the use of medical masks or cloth face coverings in work settings with normal ambient air (e.g. healthcare settings, offices, retail settings, construction).… These standards would only apply to work settings where there are known or suspected sources of chemicals (e.g., manufacturing facilities) or workers are required to enter a potentially dangerous location (e.g., a large tank or vessel).
Employee Privacy Rights During a Pandemic
Businesses trying to remain open safely during this pandemic have to be careful not to violate the privacy rights of their employees while trying to protect the health of their customers and employees through measures such as symptom surveys, temperature screenings, and testing for the virus and/or antibodies.
Below are some of the laws that might apply when an employer seeks to obtain medical information about its employees. Because applicable laws vary from state to state, if you’re an employer, you should check your state’s laws before proceeding with these types of measures.
Under the Americans with Disabilities Act (“ADA”), employers can implement mandatory medical testing for employees only if it is “job related and consistent with business necessity.”
The Equal Employment Opportunity Commission (EEOC) guidance on this issue indicates that employers can take steps to determine whether someone currently has COVID-19, because “an individual with the virus will pose a direct threat to the health of others.”
The EEOC has, therefore, stated that employers can take measures to determine if employees entering the workplace (as opposed to those who work only from home) have COVID-19, including temperature screening and testing for the SARS-CoV-2 virus, without violating the ADA.
Antibody tests, designed to tell whether a person has had the virus already, however, is not permitted under the ADA, because these tests don’t identify individuals who pose a direct threat to the health of others.
Employers should take great care with any medical information that they keep, because the ADA, the Genetic Information Nondiscrimination Act (GINA), and other laws require that this type of information be kept in a separate file and that it be kept confidential.
In addition, many states have established laws that require entities that collect personal data to use reasonable security measures to protect that data and to notify those whose personal data is exposed in a data breach.
Make sure that the medical information you collect is addressed by your data retention policy and limit access to that information in accordance with the law of your state.
Despite what many people believe, the Health Insurance Portability and Accountability Act (HIPAA) doesn’t apply to all employers, and even when a business is subject to HIPAA, it’s likely that its employee records aren’t protected by HIPAA.
If an employee is found to have COVID-19, the employer should notify other employees who have had, or may have had, recent close contact with that person.
Especially in a small business, it’s likely to be obvious who that person is, but the employer should not disclose the employee’s identity. The employer should respond to questions about the employee’s identity with something along the lines of “we don’t divulge health information about our employees.”
As an employer, you should also notify any customers, vendors, or others who may have had close contact with the employee, again, without disclosing the employee’s identity.
*******
Whether you are an employee or an employer, please feel free to contact us if you have any questions about the legal issues surrounding COVID-19 in the employment setting.
Photo by Ashkan Forouzani on Unsplash
