Since mid-March, most US states have implemented various “social distancing” restrictions and ordered closure of non-essential businesses to slow the spread of the COVID-19 virus. Generally, “essential businesses” have been instructed to remain open while adopting telework to the maximum extent possible and enforcing social distancing—but additional restrictions on essential businesses have not been widely reported.
Recently, several state and local jurisdictions increased measures that essential businesses must take to help slow the spread of the virus. Several orders have indicated that essential businesses can no longer rely on their employees to monitor their health and that the businesses are required (or strongly encouraged) to perform regular health checks on employees who work on site. Jurisdictions are also taking steps to make certain that work being performed at essential business facilities is actually “essential” and cannot be performed from home.
In short, state and local jurisdictions have been issuing and amending orders to protect public health by increasing restrictions on residents’ and businesses’ activities. Many of these additional restrictions have been modeled on actions of other states and localities, as well on guidance from the Centers for Disease Control and Prevention (“CDC”). Although governments at all levels have recognized that national security and other crucial government functions require essential businesses to continue their operations, it is possible that states, counties, and cities will make those functions increasingly difficult to perform by adding restrictions to reduce the risk of spreading the virus. All essential businesses should regularly monitor these changes and plan accordingly.
Essential Businesses’ Employees Health Checks—Background
Although they have only recently been the subject of press reports, health checks of essential businesses’ workers appear to be based in part on guidance issued by the CDC on March 11 regarding early “hot spot” counties, i.e., Santa Clara County, California, and Seattle-King, Pierce and Snohomish Counties, Washington. The CDC’s guidance recommended that every business in these counties conduct “[r]egular health checks on arrival each day (e.g., temperature and respiratory symptom screening) of staff and visitors entering buildings.”
On March 12, the CDC issued nationwide guidance concerning Mitigation Strategies for Communities with Local COVID-19 Transmission. That document provides varying recommendations based on the level of community transmission: (1) when there is no community transmission (preparedness phase), (2) when there is minimal to moderate community transmission, and (3) when there is substantial community transmission. The CDC recommends regular health checks of staff and visitors if the risk of transmission is Level 2 or above.
The EEOC cleared the way for employer health checks on March 21 by issuing guidance explaining that, although the Americans with Disabilities Act generally prohibits an employer from making disability-related inquiries or requiring medical examinations of employees, under the exigent circumstances created by COVID-19, employers could perform health checks, including measuring employees’ body temperatures before allowing them to enter the worksite.
Increased Reliance on Employers to Monitor Employee Health Symptoms
Based on the CDC and EEOC guidance, several jurisdictions have revised existing stay-at-home orders and require essential businesses to screen employees for COVID-19 symptoms upon their arrival at work. These health checks typically focus on taking employees’ temperature, presumably because that information provides information that can be measured in objective terms.
- On March 16, six San Francisco Bay Area counties (Santa Clara, San Francisco, San Mateo, Marin, Alameda, and Contra Costa) and the City of Berkeley issued the first stay-at-home orders in the country, directing residents to “shelter in place,” except to engage in certain Essential Activities or perform work for Essential Businesses, Essential Infrastructure and Essential Governmental Functions. On March 31, these jurisdictions issued identical, revised stay-at-home orders narrowing the definition of “essential business” and providing additional guidance on the continued operation of essential businesses. The guidance instructs essential businesses to “prepare, post, and implement a Social Distancing Protocol at each of their facilities at which they are maintaining operations." A template for that protocol states that, among the applicable measures that “businesses must implement,” they are required to perform "[s]ymptom checks . . . before employees may enter the work space” (emphasis added).
- On April 2, Angelina County, Texas, (which includes the City of Lufkin) issued an updated order extending the previous shelter-in-place order and introducing a county-wide curfew. Among other things, the revised order states that “All Essential Business employers within Angelina County must screen, prior to the beginning of a workday or shift, each of their employees for the following symptoms common to COVID-19: fever, dry cough, shortness of breath. Only asymptomatic employees (those having none of the previous symptoms) may be allowed to remain at work” (emphasis added).
- On April 6, Dallas County, Texas, issued an amended order and included, as attachments, separate rules for each essential business sector, e.g., essential retailers, construction, manufacturers, and distributors. The safety rules for all the sectors require that all employers, “to the greatest extent possible and as equipment becomes available,” “implement a system whereby supervisors must check the temperature of all workers and contractors with a forehead thermometer before the worker begins work” (emphasis added).
In addition to those requirements, other recently issued (or updated) stay-at-home orders include guidance that employers perform regular health checks on employees.
- On March 19, the Department of Health for the State of Ohio issued guidance that all employers screen employees each day before work. In contrast to other orders that require temperature checks but do not specify the process to be used, the Ohio guidance provides employers with step-by-step instructions on how to conduct temperature checks.
- On April 2, the State of Georgia issued its first statewide order (effective April 3) directing all residents to “shelter in place” except for “necessary travel” (including to/from work at businesses involved with critical infrastructure, such as many government contractors). Georgia’s order indicates that critical infrastructure businesses should "implement measures which mitigate the exposure and spread of COVID-19 among its workforce”—and notes that “such measures may include, but shall not be limited to . . . screening and evaluating workers who exhibit signs of illness, such as a fever over 100.4 degrees Fahrenheit, cough, or shortness of breath” (emphasis added).
- On April 3, Tarrant County (Texas’s third most populous county, which includes Forth Worth) issued a revised order, extending the shelter-in-place order until April 30 and introducing additional social distancing protocols for essential businesses. Among other things, the order mandates “screening precautions to protect employees [and specified that] all activity shall be performed in compliance with Social Distancing and . . . Guidelines from the President and the CDC.” (The CDC Guidance varies considerably from industry to industry.)
Although it did not issue a restriction, the State of Maryland issued an April 5 order delegating authority to local health officials to control or close “unsafe facilities”—even if these facilities are “essential.” “Unsafe facilities” include those that are “unable or unwilling to operate in a manner that does not pose an unreasonable risk of exacerbating the spread of COVID-19 (including, without limitation, as a result of non-compliance with Social Distancing Guidance [issued by the CDC]).” It remains to be seen whether additional jurisdictions enable similar enforcement measures.
In addition to the state/local government orders, many large corporations appear to be independently instituting regular health checks. Public reports indicate that two large retail companies require their facilities to check the temperature of employees when they report to the workplace; another has sent thermometers to employees and asked them to regularly check their temperatures at home; and another has sent its food delivery contract workers health kits with reusable facemasks, hand sanitizers, and thermometers.
Whether a business performs health checks of employees because of an order or chooses to do so independently, we understand some businesses have issued disclaimers when performing, for instance, temperature checks. Essential businesses required to perform such checks should consider making clear to employees that the health check is a precautionary measure mandated by state (or local) law; it does not constitute a diagnostic procedure; and, if employees experience any symptoms of COVID-19, they should go seek licensed medical care immediately.
Several of the San Francisco Bay area counties mentioned above, which issued the first wave of pandemic response orders, recently issued orders increasing the regulation on, and reducing the flexibility of, essential businesses. For instance, some contractors operate parts of their business that are deemed “essential” in the same facility as non-essential activities. To reduce the chance of potential community spread at such facilities, these jurisdictions recently revised their restrictions in several ways, including adding a provision of their order stating that businesses which include an “essential business” component at their facilities alongside non-essential components must, to the extent feasible, scale down their operations to the essential business component only.
The counties’ and Berkeley’s revised orders also state that “Essential Businesses may only assign those employees who cannot perform their job duties from home to work outside the home.” They thus want to emphasize that on-site essential business activity must be performed solely by people who really must be on location. It would not be surprising if additional jurisdictions update their orders to similarly stress the need to minimize on-site non-essential work.
In addition, the City of Los Angeles recently issued a worker protection order requiring certain “businesses . . . that are exempt” (essential) under the earlier “Safer at Home” order to provide (and workers to wear) “face coverings over their noses and mouths.” This restriction does not yet apply to businesses such as military/defense contractors, financial services firms, or professional services—but may be extended to such businesses in the future. Also, on April 8, Santa Clara County’s Public Health Department issued an order “directing all entities and individuals in the county to disclose,” on a one-time basis, to the county health officer “all inventories” of personal protective equipment, with the specific items and amounts that qualify as an “inventory” defined in the order. So far, such an order has been issued by just one county.
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At this time, mandatory employee health checks are not yet widespread. Nor are restrictions emphasizing that essential businesses should pare back non-essential functions performed on-site. However, states and local jurisdictions are regularly amending their COVID-19 response orders, and many of them are borrowing from practices adopted by other jurisdictions. As noted above, many of these orders are not statewide but are being prepared and applied in specific counties in which business operations may be found. Companies with “essential business” operations in numerous locations should continue to monitor orders and guidance in each location.
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And for any legal questions related to this pandemic, please contact the authors of this Legal Update or Mayer Brown’s COVID-19 Core Response Team at FW-SIG-COVID-19-Core-Response-Team@mayerbrown.com.”