Employers Should Follow Recent Government Guidance On Workplace Conditions For Employees Currently Working Or Returning To Work
State and federal agencies have recently issued additional guidance on workplace conditions in light of the coronavirus pandemic. Here are some of the highlights which employers should keep in mind:
1. Employers must continuously monitor new government requirements, which are constantly being updated. Generally speaking, current guidelines recommend that employers:
- promote frequent and thorough hand washing,
- encourage workers to stay home if they are sick,
- encourage respiratory etiquette, including covering coughs and sneezes,
- provide customers and the public with tissues and trash receptacles,
- discourage workers from using other workers’ phones or offices, and
- adopt measures to reduce interactions, which may include modified workplace seating, flexible worksites (e.g., telecommuting), flexible work hours (e.g., staggered shifts), and physical barriers.
In addition, as we reported previously, New York requires all employers to provide employees with a face covering to wear if the employees have any contact with others at the workplace.
Employers should carefully review and follow guidelines issued by federal and local agencies, which are continuously being updated, including the guidelines issued by:
- the Federal Emergency Management Agency
- the Centers for Disease Control, and
- the Occupational Health and Safety Administration
The Equal Employment Opportunity Commission (EEOC) guidance has explained that safety requirements generally override other employment law considerations, such as the disability discrimination laws:
“The [Equal Employment Opportunity (EEO)] laws, including the [Americans with Disabilities Act (ADA)] and Rehabilitation Act, continue to apply during the time of the COVID-19 pandemic, but they do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state/local public health authorities about steps employers should take regarding COVID-19. Employers should remember that guidance from public health authorities is likely to change as the COVID-19 pandemic evolves. Therefore, employers should continue to follow the most current information on maintaining workplace safety.”
2. Asking questions and requiring testing is generally ok. With respect to testing employees, the EEOC has stated that generally speaking, it shall not be considered a discriminatory practice under the Americans with Disabilities Act to ask employees if they are suffering symptoms of the virus, take the temperature of all employees, or to require all employees to take a test provided that the employer takes certain precautions. Specifically, the EEOC has explained:
- With respect to asking employees if they are suffering symptoms:
“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.
- With respect to taking body temperature:
“Generally, measuring an employee's body temperature is a medical examination. Because the CDC and state/local health authorities have acknowledged the 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.”
- With respect to testing for the virus:
“The [Americans with Disabilities Act (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.
Consistent with the ADA standard, employers should ensure that the tests are accurate and reliable. For example, employers may review guidance from the U.S. Food and Drug Administration about what may or may not be considered safe and accurate testing, as well as guidance from CDC or other public health authorities, and check for updates. Employers may wish to consider the incidence of false positives or false negatives associated with a particular test. Finally, note that accurate testing only reveals if the virus is currently present; a negative test does not mean the employee will not acquire the virus later.
Based on guidance from medical and public health authorities, employers should still require - to the greatest extent possible - that employees observe infection control practices (such as social distancing, regular handwashing, and other measures) in the workplace to prevent transmission of COVID-19.”
3. Employers must keep medical information confidential. This includes information about employee reports of symptoms and test results. The EEOC guidance explains:
“The ADA requires that all medical information about a particular employee be stored separately from the employee's personnel file, thus limiting access to this confidential information. An employer may store all medical information related to COVID-19 in existing medical files. This includes an employee's statement that he has the disease or suspects he has the disease, or the employer's notes or other documentation from questioning an employee about symptoms.”
4. Age alone cannot be a factor in making employment decisions. With respect to age, the recent EEOC guidance states that it may be considered a discriminatory practice to make decisions regarding returning to work based solely on age. The EEOC guidance explains:
“The fact that the CDC has identified those who are 65 or older, or pregnant women, as being at greater risk does not justify unilaterally postponing the start date or withdrawing a job offer. However, an employer may choose to allow telework or to discuss with these individuals if they would like to postpone the start date.
5. Employees with disabilities that make them susceptible to the virus may request special additional reasonable accommodations. Such employees may request reasonable accommodations, and the employer should engage in an “interactive process” with the employee to decide on the appropriate accommodation, which does not cause “significant difficulty” for the employer. The EEOC guidance explains:
“There may be reasonable accommodations that could offer protection to an individual whose disability puts him at greater risk from COVID-19 and who therefore requests such actions to eliminate possible exposure. Even with the constraints imposed by a pandemic, some accommodations may meet an employee's needs on a temporary basis without causing undue hardship to the employer.
Low-cost solutions achieved with materials already on hand or easily obtained may be effective. If not already implemented for all employees, accommodations for those who request reduced contact with others due to a disability may include changes to the work environment such as designating one-way aisles; using plexiglass, tables, or other barriers to ensure minimum distances between customers and coworkers whenever feasible per CDC guidance or other accommodations that reduce chances of exposure.
Flexibility by employers and employees is important in determining if some accommodation is possible in the 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.
. . . [I]f [the disability] is not obvious or already known, an employer may ask questions or request medical documentation to determine whether the employee has a "disability" as defined by the ADA (a physical or mental impairment that substantially limits a major life activity, or a history of a substantially limiting impairment).”
Employers should continue to monitor and follow further guidelines that are likely to be issued in the near future.