Employees returning to their workplaces once stay-at-home and similar orders are relaxed will want to know that they are safe. As explained in a previous alert, employers must ensure that their places of business are free from recognized hazards pursuant to the Occupational Safety and Health Act (OSHA) and its General Duty Clause—no small challenge when faced with an invisible virus.
Key to maintaining overall workplace safety—as we prepare to transition into our new normal—is for employers to use their bests efforts to make sure that individuals working in or visiting their offices, storefronts, restaurants, factories, and the like are empirically COVID-19-free. Doing so involves taking reasonable precautions against asymptomatic transmission, and barring or removing those who exhibit symptoms to preclude contamination of others. This is a daunting task, to say the least, and one made even more difficult in the absence of comprehensive coronavirus testing.
The EEOC and OSHA have issued guidance to employers to help them take reasonable steps to help ensure that, in context, their workforces are safe and do not pose a threat to others. Michelman & Robinson explains what employers can and cannot do according to the EEOC and OSHA.
In response to the coronavirus, the EEOC has provided unprecedented leeway to employers, allowing them to make previously forbidden inquiries into the health of their employees. And with that, years of (now ingrained) teaching about the Americans with Disabilities Act (ADA) have been turned on its head. Pre-coronavirus, the ADA prohibited an employer from asking any disability-related questions of employees or requiring them to submit to medical examinations unless doing so was job-related and consistent with business necessity. That being said, it was also true that such disability-related inquiries or medical exams were (and still are) considered job-related and consistent with business necessity when an employer had a reasonable belief, based on objective evidence, that (1) an employee’s ability to perform essential job functions would be impaired by a medical condition, or (2) an employee would pose a direct threat due to a medical condition.
Thankfully, the EEOC has determined (how could it not?) that an individual with COVID-19 , or symptoms of it, presents a significant risk of substantial harm to others in the workplace, which justifies limited health inquiries and medical examinations of employees. Thus, the EEOC is allowing all of the following during this pandemic:
- Employers may ask employees if they are experiencing symptoms of COVID-19, which symptoms include fever, chills, cough, shortness of breath, and sore throat (as the CDC lists other coronavirus-related symptoms, this list will expand accordingly). Employers must maintain all such information about employee illness as a confidential medical record in compliance with the ADA
- Employers may measure employee body temperatures and maintain a confidential log of the results
- Employees who become ill with symptoms of COVID-19 can be asked to leave the workplace and stay at home
- If and when an employer learns that an employee has COVID-19, the employer may disclose the name of that employee to a public health agency
- Staffing agencies or contractors may notify employer clients and disclose the name(s) of any freelancer that has been infected with COVID-19 because the employer may need to determine if the infected worker had contact with anyone in the workplace
- Leaving aside the wisdom of asking an employee to get a doctor’s note these days, an employer may, nevertheless, require a doctor’s note certifying an employee’s fitness for duty (that he or she is virus free or has coronavirus antibodies)
- An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees hired for the same type of job
- Employers may delay the start date of a job applicant who has COVID-19 or related symptoms
- Employers may withdraw job offers given to applicants that have COVID-19
- When an employee returns from a trip, whether for business or pleasure, an employer may ask if that employee is coming back from a CDC-designated location requiring post-travel self-quarantine
- Employers may insist that employees wear personal protective equipment (PPE)
- Employers may ask employees why they have been absent from work if the employers suspect absences for medical reasons
Despite the relaxation of ADA rules, there are still things that the EEOC says an employer cannot do, even in the wake of the coronavirus crisis. These include:
- Announcing to the workforce that a particular employee has COVID-19
- Forcing an employee to take any current or future vaccine
- Postponing the start date or withdrawing a job offer because an individual is 65 years old or pregnant, which places him or her at higher risk of COVID-19 morbidity
- Denying a reasonable accommodation to an individual whose pre-existing disability puts him or her at greater risk from COVID-19 and who requests such accommodation to eliminate possible coronavirus exposure; provided, however, that the request for accommodation is temporary and does not place an undue hardship on the employer. It should be noted that this is a murky area because it is not clear that having a condition that places one at a higher risk of COVID-19 morbidity is— in and of itself—a disability that must be accommodated by an employer. For its part, the EEOC states that “flexibility by employers and employees is important in determining if some accommodation is possible [under] the [current] circumstances. Temporary job restructuring of marginal job duties, temporary transfers to a different position, or modifying a work schedule or shift assignment may also permit an individual with a disability to perform safely the essential functions of the job while reducing exposure to others in the workplace or while commuting”
- Unless doing so creates an undue hardship, employers may not refuse to provide additional or altered accommodations to employees that were already receiving reasonable accommodations prior to the COVID-19 outbreak (e.g., special chairs for use when telecommuting, reading machines for employees with impaired vision, etc.)
Recent OSHA guidance states that employers should take steps to protect their workforces by implementing policies and procedures to (1) promptly identify and isolate sick employees and visitors, and (2) encourage employees to self-monitor and report signs and symptoms of COVID-19. Thus, employers should also consider the following:
- Moving infectious individuals to a location away from workers, customers, and other visitors (e.g., a designated isolation room) until those individuals can safely exit the workplace
- Actively encouraging sick employees to stay home
- Implementing sick leave policies that are flexible and that do not penalize employees for self-reporting
- Encouraging staffing companies to implement non-punitive sick leave policies, and requiring that they have their assigned freelancers with COVID-19 symptoms stay at home
- Being mindful of employee concerns about pay, leave, safety, health, and other issues that are related to the pandemic. Toward that end, employers should provide adequate, usable, and appropriate training, education, and informational material about business-essential job functions and worker health and safety, including proper hygiene practices and the use of workplace controls (like PPE). Remember: informed workers who feel safe at work are less likely to be unnecessarily absent
No doubt, as employers look to resume operations within the confines of the new normal as informed by COVID-19, it is helpful that government agencies such as the EEOC are beginning to adjust to the many challenges faced by employers to maintain safe workplaces.
This blog post is not offered, and should not be relied on, as legal advice. You should consult an attorney for advice in specific situations.