Pub. 2 2020 Issue 4

25 nebraska society of cpas W W W . N E S C P A . O R G considered. For example, is there a written contract? Does it contain language that would allow for withdrawal or renegotiation of the contract? Even without a contract, there are a number of factors to consider and employers should not assume any action they take is reasonable due to COVID-19. If we require employees to be tested for the COVID-19 virus or the antibodies to COVID-19, or to undergo temperature checks, are there HIPAA obligations we are required to follow? The privacy restrictions under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) apply only to “covered entities” like medical providers, health plans, and health care clearinghouses, as well as certain businesses that have entered into a “business associate” agreement with a covered entity. Generally speaking, employers are not covered entities, and therefore are not subject to the HIPAA privacy rule. With that said, even if an employer is not subject to the HIPAA privacy rule, an employer is subject to confidentiality obligations under the ADA. Further, employers should take care not to disclose any sensitive or confidential information of employees to non-authorized personnel without the employee’s written consent. Should employees be required to wear masks when they are in the office? The CDC has advised wearing face coverings or non-surgical face masks in community settings where individuals are going to be near each other and social distancing is difficult to maintain. According to the CDC, cloth face masks and other non-surgical face masks can help reduce the spread of COVID-19, but are not a substitute for social distancing or other precautionary measures. (See https:// www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/cloth- face-cover.html.) Certain Occupational Safety and Health Administration (OSHA) standards govern the use of PPE and respiratory masks when such use is required by an employer. Under the OSHA standard, an employer is obligated to pay for the PPE as well as instruct employees on how to use, clean, and when to replace the PPE. (See https://www.osha.gov/SLTC/personalprotectiveequipment/ standards.html.) If an employee is infected by COVID-19, does an employer have an obligation to record it as a work-related injury or illness under OSHA’s recordkeeping requirements? On April 10, 2020, OSHA issued interim guidance addressing an employer’s duty to record COVID-19 infections as a work-related illness. In short, OSHA will not enforce 29 CFR 1904 (e.g., the recordkeeping regulation) to require employers to make work- relatedness determinations regarding COVID-19, except where the employer has objective evidence that the COVID-19 infection may be work-related or evidence that the infection was work- related is reasonably available to the employer. One example given by OSHA of objective evidence that a COVID-19 infection may be work-related is when a number of cases has developed among a group of employees who work closely together and there is no alternative explanation for the infections. (See https://www.osha. gov/memos/2020-04-10/enforcement-guidance-recording-cases- coronavirus-disease-2019-covid-19.) What should we do about employee travel after we reopen the office? Employers are encouraged to review their business travel policies to determine if any changes are necessary in light of the COVID-19 pandemic. Employers may also consider requiring employees to notify human resources and potentially self-quarantine or work from home (if appropriate) for a period of time if the employee has traveled to areas where there is a widespread outbreak of COVID-19. t Koley Jessen is continually monitoring the legal implications of the COVID-19 pandemic. Individuals with questions are encouraged to contact a Koley Jessen attorney. Jackie Tondl handles a wide variety of employment matters. Whether it’s an employment agreement, employee handbook, HR policy development, or responding to charges of discrimination, Tondl works with clients to achieve their goals while maintaining compliance with the federal, state, and local laws including the Age Discrimination in Employment Act, the Fair Labor Standards Act, and Title VII of the Civil Rights Act. She can be reached at jackie.tondl@koleyjessen.com . John C. Dunn works with clients to quickly resolve employment-related problems and develop practices to prevent problems in the future, allowing them to focus on their business operations. In counseling both individual and business clients alike, he seeks to provide practical and effective legal solutions that help them accomplish their objectives. He can be reached at john.dunn@koleyjessen.com . As employers begin to reopen their physical workplace, employees may express concerns about COVID-19. For example, some employees may wish to continue to work remotely out of a fear of COVID-19.