Returning to Work: Insights for Employers

As stay-at-home and similar orders are being lifted, businesses are reopening and employees are returning to work. It is important for businesses, including those that have remained open, to be mindful of potential labor and employment law issues which may arise as the country starts to emerge from the shutdown. This article covers two broad topics: having an effective plan, and discrimination and accommodation considerations.

Have a Plan

Businesses should formulate and implement a plan to reopen and have employees return to work. In general, an effective plan should, at a minimum, account for the following broad categories of issues:

1. Communicate with employees about reopening.

• Decide which employees should return, and when they should return.
• Develop a written protocol to address confirmed or suspected COVID-19 cases at the workplace.
• Anticipate employee anxiety and plan accordingly.
• Explain to employees the steps taken to ensure safety.

2. Address workplace safety.

• Follow federal, state and local guidance for businesses and employers.
• Implement social distancing, which might include staggered shifts and breaks, and creating space between employees.
• Limit in-person meetings and instead encourage virtual meetings.
• Minimize physical contact.
• Increase cleaning and sanitation.
• Consider whether masks, gloves or other personal protective equipment (PPE) are mandatory. If mandatory, then in general the business is required to provide the equipment to employees.
• Consider temperature checks and COVID-19 testing for employees.
• Restrict employee travel.

3. Leaves of absence and accommodations (discussed in more detail below).

• Prepare to encounter and address employee requests for accommodations.
• Consider and analyze the types of requested accommodations which may be reasonable.
• Confirm applicability of and compliance with the Families First Coronavirus Response Act (FFCRA).
• Consider updating leave policies.

4. Employee morale.

• Communicate regularly with employees.
• Promptly address health and safety concerns raised by employees.
• Review and confirm compliance with anti-discrimination, anti-harassment and anti-retaliation policies.

Discrimination and Accommodation Considerations

The Equal Employment Opportunity Commission (EEOC) has regularly updated its guidance to employers regarding issues raised by the pandemic, including issues under the Americans with Disabilities Act (ADA). Here are some practical insights for employers in the form of an “FAQ”:

Q. How much information may an employer request from an employee who calls in sick, in order to protect the rest of its workforce during the COVID-19 pandemic?

A. During a pandemic, ADA-covered employers may ask such employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.

Q. When screening employees entering the workplace during this time, may an employer only ask employees about the COVID-19 symptoms EEOC has identified as examples, or may it ask about any symptoms identified by public health authorities as associated with COVID-19?

A. As public health authorities and doctors learn more about COVID-19, they may expand the list of associated symptoms. Employers should rely on the CDC, other public health authorities, and reputable medical sources for guidance on emerging symptoms associated with the disease. These sources may guide employers when choosing questions to ask employees to determine whether they would pose a direct threat to health in the workplace. For example, additional symptoms beyond fever or cough may include new loss of smell or taste as well as gastrointestinal problems, such as nausea, diarrhea, and vomiting.

Q. When may an ADA-covered employer take the body temperature of employees during the COVID-19 pandemic?

A. Generally, measuring an employee’s body temperature is a medical examination. Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees’ body temperature. However, employers should be aware that some people with COVID-19 do not have a fever.

Q. Does the ADA allow employers to require employees to stay home if they have symptoms of COVID-19?

A. Yes. The CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace. The ADA does not interfere with employers following this advice.

Q. When employees return to work, does the ADA allow employers to require a doctor’s note certifying fitness for duty?

A. Yes. Such inquiries are permitted under the ADA either because they would not be disability-related or, if the pandemic were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees. As a practical matter, however, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus.

Q. May an employer administer a COVID-19 test before permitting employees to enter the workplace?

A. The ADA requires that any mandatory medical test of employees be “job related and consistent with business necessity.” Applying this standard to the current circumstances of the COVID-19 pandemic, employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. Therefore, an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.

Q. May an employer bar an employee from the workplace (or take any other adverse action) solely because of an underlying medical condition that puts that particular employee at risk if he/she contracts COVID-19?

A. No. Such an action can be taken only if the employee’s disability poses a “direct threat” to that employee’s own health that cannot be eliminated or reduced by accommodations. A “direct threat” to an employee’s own health means a “significant risk of substantial harm.”

To be clear, this specific Q&A involves barring a particular employee to protect that employee from himself or herself, as opposed to protecting other employees. An employee can bar employees with COVID-19 symptoms because such employees present a direct threat to co-workers.

Notably, the EEOC has confirmed that employers do not need to allow older workers to work from home merely based on their age unless similarly-situated employees outside the older classification are allowed to telework.

Q. What types of accommodations may be “reasonable” during the pandemic?

A. Employee requests for reasonable accommodations under the ADA are inherently fact-specific, and each request must be analyzed on a case-by-base basis. In general, the following types of accommodations may potentially be reasonable:

Additional or enhanced PPE, beyond what the employer may generally provide to all employees.
Additional or enhanced protective measures, such as barriers that provide separation between employees or increasing the space between employees.
Temporary modification of work schedules, particularly to decrease contact with coworkers or the public.

Conclusion

Although businesses should always be mindful of labor and employment law issues, those considerations are even more heightened and magnified during the pandemic. By ensuring compliance with all applicable employment laws, a business can more smoothly navigate this challenging environment and help prevent missteps that can lead to claims or lawsuits.

 

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