Not all of us have now shuttered our places of employment and are working remotely. Some of us require certain employees to continue to work on site because of the unique nature or essential goods or services offered by a business. Until such time as we may begin to return to our personal and work lives before COVID-19 created havoc, recent legislation and work practices have changed several areas of employment law.
Once we are allowed to return to the workplace, employers may find that their behavior towards their employees will be measured in hindsight. As such, employers should not assume that they can use the COVID-19 pandemic as a rationale for making employment decisions that they would not have otherwise made if the pandemic had not existed. The purpose of this column is to provide you with a brief overview of portions of employment law now affected by COVID-19.
As we continue to confront the force and effect of COVID-19, our elected officials nationally and locally, along with various regulatory agencies are seeking to respond accordingly. During this author’s preparation of this article statutory and regulatory responses have required several updates to this article. By the time this article is published and disseminated, portions of this article may already be outdated.
This article shall summarize (i) guidelines issued by the EEOC articulating what employers may and may not do to protect employees and the public’s health, (ii) managing telecommuting employees, (iii) appropriately responding in the workplace when an employee has contracted COVID-19,
EEOC Issues Guidelines Articulating What Employers May And May Not Do
To Protect Employees And The Public’s Health
The Equal Employment Opportunity Commission (the “EEOC”) has recently answered questions related to the impact of COVID-19 on the laws that the agency enforces. Importantly, the EEOC issued a disclaimer that guidance from the Centers for Disease Control and state or local public health authorities should not hinder employers’ ability to comply with applicable workplace laws. The following recaps a variety of the views articulated by the EEOC.
COVID-19 and the Americans with Disabilities Act (the “ADA”).
Employers may physically take the temperature of all employees who will be physically entering the workplace. Employers may also ask such employees whether they have COVID-19 or symptoms associated with COVID-19 or whether they have been tested for COVID-19. If an employee refuses to have their temperature taken or answer COVID-19 related questions, the employee may be barred from physically entering the workplace. Employers should not make these inquiries upon employees who are telecommuting.
If an employer wishes to only ask particular employees, rather than uniformly treat all on-site employees the same, if they have COVID-19 or only require that the particular employees have their temperatures taken, the employer must have a reasonable belief, based on objective evidence, that the person might have COVID-19. Failing to uniformly treat all on-site employees the same creates the risk of discrimination and related claims against the employer.
Rather than asking an employee whether or not a member of the employee’s family has COVID-19, the agency suggests that employers should ask whether the employee has had contact with anyone who the employee knows has COVID-19. Rephrasing that question avoids potential violations of various privacy laws.
Employers may notify public health authorities if they learn that an employee has COVID-19. However, when doing so, employers should not disclose the employee’s identity to similarly avoid potential violations of various privacy laws.
Supervisors who are working remotely should strive to comply with the ADA requirement that medical information be stored separately and securely from regular personnel files. If they are not able to do so, they should undertake efforts to safeguard this information to the greatest extent possible until it can be appropriately stored.
The EEOC’s position is that it is currently unclear at this time whether COVID-19 qualifies as a disability under the ADA. The agency anticipates providing clarification on this issue in the future. As such, employers generally do not have to provide a reasonable accommodation to an employee who lives in the same household as someone who, due to a disability, is at a greater risk of illness if they contract COVID-19. During this pandemic, in an effort to reduce ADA and related claims later which look back to how the employer responded during the pandemic, employers may wish to consider providing requested accommodations on a temporary basis while considering the accommodation request. Employers may learn that employees can satisfactorily perform essential functions while working remotely. Therefore, an employee who has previously been denied telecommuting as a reasonable accommodation because of concerns that the employee will not be able to perform essential functions from home, may be entitled to telecommuting as a reasonable accommodation after the pandemic has ended.
Other EEOC anti-discrimination laws.
Employers cannot exclude workers from the workplace on the basis that they are at a higher risk of experiencing severe symptoms if they contract COVID-19. This would apply to employees 65 or older and pregnant workers. Conversely, employers are not necessarily required to grant pregnant workers’ requests to telecommute because of the pandemic, but should grant pregnant workers the same adjustments to work conditions as provided to other similarly situated employees.
Managing Telecommuting Employees
During these extraordinary times, technology provides an alternative to many employees by allowing them to remain connected to their fellow employees, clients, vendors, etc., while working from their homes. Employers should be mindful of which employees should telecommute and which are required to work on-site. The list of what type of occupation qualifies as “essential” is a fluid characterization. Certainly essential employees such as first responders, food and agriculture workers, and the critical manufacturing industrial cannot effectively telecommute. For many other non-essential employees required to work on-site, employers may be exposing their businesses to later litigation by creating unfavorable or an unsafe exposure to COVID-19. To effectively reduce litigation exposure, employers should have in place written policies during times of disruption, including (i) the importance of protecting business secrets such as data security, co-mingling personal data, and shredding of printed copies when the employee is safely able to return to the workplace); (ii) the preservation of sensitive work product; and (iii) the responsibility for payment of costs associated with telecommuting.
Notwithstanding the performance of work from home, employers must remember that wage and hour requirements still apply. Exempt employees are still paid on a “salary basis” and non-exempt employees must continue to record their hours worked. Moreover, hourly employees remain subject to rest breaks and compensation for all hours worked including overtime. Treat all non-exempt employee working from home the same as if they were in the workplace.
Appropriately Responding In The Workplace When An Employee Has Contracted COVID-19
For those employers who require an on-site workforce, you must take affirmative steps to decrease the spread of COVID-19 and reduce its impact upon your employees and the work environment. To do so, employers are actively encouraging sick employees to stay at home, identifying where and how employees may be exposed to COVID-19 and taking steps to reduce those potential exposures.
The following measures are consistent with both the EEOC and OSHA pertaining to both the sick employee and the remainder of your workforce.
Immediately send home any employee who is sick, regardless if they have not been diagnosed with COVID-19. Employers are permitted to ask employees if they are experiencing any of the symptoms of COVID-19, and whether they have been in contact with anyone diagnosed with or exhibiting symptoms of COVID-19.
If an employee is diagnosed with COVID-19, notify all other employees, clients, vendors and all other third parties who may have been exposed to the diagnosed employee in the past and advise them of their need to immediately contact their health care providers. Concurrently be mindful of any requirements to notify local or state health authorities
Importantly, the employer must protect the privacy of the diagnosed employee because the ADA requires the confidentiality of all employees’ medical information. This prohibition applies to employees diagnosed with COVID-19. Consistent with the ADA, employers are also required to maintain the privacy of any health information they gather related to an employee’s medical condition or their symptoms, and any such documentation should be kept in a secure private file with limited access by only “need-to-know” human resource staff.
Do not allow the diagnosed employee to return to work until they have been cleared in writing by a physician.
Finally, continue to require employees to monitor themselves for symptoms and stay home if they exhibit any of the COVID-19 symptoms.
Once an on-site employee is diagnosed with COVID-19, CDC guidelines recommend cleaning and disinfecting the workplace used by the diagnosed employee.
As concerns about the outbreak of COVID-19 continue to mount in the United States (and world-wide), resulting in business closures and other disruptions across the country, employers are facing many difficult questions. By placing the safety and well-being of employees at the forefront, businesses will reduce their exposure to litigation and damages which may have been avoidable. This crisis will pass and hopefully each our businesses will return to capture our respective market shares.
The contents of this article are not intended to be a complete summary of the legal issues discussed in this article. Rather, this article is intended to alert the reader to the broad impact of changes in the law or the means in which to comply with the law to reduce the risks of liability and claims. Because of the complexity and ongoing changing of the law, it is recommended that all businesses consult with experienced counsel to ensure that all policies and practices are compliant with applicable state and federal law.
Please feel free to reach out to the author at jroth@TheRothLawFirm.com with any questions or comments.