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US COVID-19: Risky Business – Navigating Workplace Issues Involving High Risk Employees

As states across the country see spikes in COVID-19 cases, employers continue to wrestle with how to handle “high risk” employees, i.e., employees who are at an increased risk for severe illness from COVID-19.  Guidance from a variety of agencies on the topic, including the Equal Employment Opportunity Commission (“EEOC”), the Centers for Disease Control and Prevention (“CDC”), and the Occupational Safety and Health Administration (“OSHA”), has been published in waves, leaving many to wonder how this guidance may or may not continue to be relevant.

Below are six important areas of the law to consider when navigating this evolving landscape.  As a reminder, each individual employee’s circumstances are unique, so while employers should have a consistent procedure in place for triaging high risk employees’ presence in the workplace, employers should also be prepared to develop individualized solutions based on an employee’s specific needs.

  • The Americans with Disabilities Act (“ADA”): Employees with certain underlying health conditions may qualify as “high risk” and thus be entitled to a reasonable accommodation under the ADA.  While accommodations may include a leave of absence or telework arrangement, other possible accommodations include permitting the employee more frequent hygiene breaks, excusing the employee from attending group meetings/gatherings, and reconfiguring the employee’s workspace.  It is important that employers not act unilaterally with respect to implementing accommodations.  Instead, the interactive dialogue process should be used early on to identify what, if any, accommodations an employee may need and/or receive.  As a reminder, employers’
  • US COVID-19: 4 Takeaways from the EEOC’s New Guidance on Antibody Testing, Older Workers, and Accommodations

    June 23, 2020

    Categories

    With more and more states reopening their economies, employers are facing a barrage of new requirements from state and local governments.  But compliance with local law isn’t the only thing employers must consider as they resume business operations.  Federal anti-discrimination laws, including the Americans with Disabilities Act (“ADA”) and the Age Discrimination in Employment Act (“ADEA”), continue to impact which workers may be required to return to work and what information employers may gather in the process.

    Just as the COVID-19 pandemic evolves, so, too does guidance on these topics from the Equal Employment Opportunity Commission (“EEOC”), the agency charged with enforcing federal anti-discrimination laws.  In its most recent publication, the EEOC offers new insights on antibody testing, older workers, and accommodations.  Below are four key takeaways from the updated guidance for every employer to consider.

  • Employers may not require employees to undergo antibody testing (i.e. serologic testing used to determine whether an employee was previously infected with COVID-19) prior to returning to the workplace. This is in contrast to diagnostic testing (i.e. viral testing used to determine whether an employee is currently infected with COVID-19), which an employer may require.
  • Employees are not entitled to an accommodation under the ADA in order to reduce the risk of exposing a family member who is at higher risk of severe illness from COVID-19 due to an underlying medical condition.
  • If an employer implements health/temperature screenings upon entry, an employee’s request for an alternative method of screening due to a medical
  • US COVID-19: EEO Reminders to Include in Return to Work Communications

    As employers prepare their “Return To Work” plans, clear communications to employees about protocols and expectations will be critically important.  Recent updates to the federal Equal Employment Opportunity Commission (EEOC) COVID-19 publication, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and other EEOC Laws,” discuss “reminders” that employers should consider providing to employees on various EEO-related “Return To Work” topics.

    Anti-Harassment Reminders

    Near the beginning of the COVID-19 outbreak in the U.S., as reports of harassing conduct towards Asian individuals increased, the EEOC was quick to remind employers that they could reduce the chance of harassment by explicitly communicating to the workforce that fear of the pandemic “should not be misdirected against individuals because of a protected characteristic, including their national origin, race, or other prohibited bases.”  (E.1.)

    The EEOC reiterated that guidance in its recent updates, noting that workforce reminders should:

    • Note Title VII’s prohibitions on harassment;
    • Remind employees that harassment will not be tolerated;
    • Encourage anyone who experiences or witnesses workplace harassment to report it to management; and
    • Remind employee that harassment can result in disciplinary action up to and including termination.

     

    (E.3.)  The EEOC further emphasized that managers in particular should be reminded of their roles in watching for, stopping, and reporting any harassment or other discrimination, and that managers should specifically “be alert to demeaning, derogatory, or hostile remarks directed to employees who are or are perceived to be of Chinese or other Asian national origin, including about

    U.S. COVID-19: Returning High Risk Employees To The Workplace: Best Intentions Could Be Bad News For Employers

    Employers preparing to reopen their places of business have many logistical considerations, including compliance with state and local health orders relating to face coverings, temperature and wellness screenings, and other measures designed to help keep employees healthy and safe during the COVID-19 pandemic. Last week, the U.S. Equal Employment Opportunity Commission (“EEOC”) updated its own “Return to Work” guidance by adding Q&A guidance on how employers should handle a “high risk” employee, i.e., an employee with an existing and known disability that may make the employee more susceptible to severe illness from COVID-19.  The guidance is a helpful reminder to employers that even actions taken with the best of intentions may not comply with legal obligations and restrictions.  Below are three important questions for employers to consider in light of the EEOC’s updated guidance.

    How does the Interactive Process Apply to COVID-Related Requests for Accommodation?

    Under the Americans with Disabilities Act (the “ADA”), employers are obligated to consider requests from a disabled employee for reasonable accommodations to the employee’s work environment that would permit him or her to perform the essential functions of the job. While the EEOC’s earlier guidance addressed the nuts and bolts of the “interactive process” during the pandemic generally (including the timeframe in which employers should respond to requests for accommodation and what qualifies as an “undue hardship” during the pandemic), many employers were left questioning how the outbreak of COVID-19 would impact their

    U.S. COVID-19: Mask and Facial Covering Orders—Four Things Employers Need to Know and Do to Comply with New Obligations

    Across the country, state and local governments are considering safe ways to “reopen” their economies and revise some of their strict shelter-in-place orders. One such consideration includes masks and “face coverings,” with many implementing a requirement that members of the public, including employees reporting to work, wear such coverings.  Below are four things that employers should do now to be prepared to comply with mask and face covering requirements as they “reopen” their businesses.

  • Continue to Monitor Public Health Guidance
  • Public health authorities at the federal, state, and local levels are likely to continue revising their recommendations on face coverings as they learn more about COVID-19. For example, last month, the federal Centers for Disease Control and Prevention (“CDC”) issued guidance recommending that individuals wear “cloth face coverings”[1] in public settings where other social distancing measures are difficult to maintain (e.g., grocery stores and pharmacies), especially in areas of significant community-based transmission. The CDC makes clear that the purpose of such coverings is primarily to “help people who may have the virus and do not know it from transmitting it to others.” In other words, a face covering primarily protects others from an asymptomatic wearer.

    Although the CDC’s guidance is only a recommendation – and thus not binding – a variety of local and federal agencies rely on the CDC’s guidance generally to identify “best practices” for employers, including the Equal Employment Opportunity Commission (“EEOC”) and the Occupational Safety and Health Administration (“OSHA”). State and local

    U.S. COVID-19: EEOC Updates COVID-19 Guidance, Permitting Employers To Administer COVID-19 Tests and Clarifying Accommodation Obligations

    April 28, 2020

    Categories

    The U.S. Equal Employment Opportunity Commission (“EEOC”) recently issued new guidance to employers regarding the COVID-19 pandemic. Notably, and in a significant departure from prior guidance, the EEOC advises that employers may administer a COVID-19 diagnostic test to an employee before entering the workplace. The EEOC also clarified employee rights and employer responsibilities relating to accommodations. It will be critical for employers to understand this guidance from the EEOC, as well as orders and related guidance from federal, state, and local authorities, as they prepare to bring employees back to work safely.

    Testing Employees for COVID-19

    The EEOC has previously advised that, under the Americans with Disabilities Act (“ADA”), an employer can only require an employee to undergo a medical test if that test is “job related and consistent with business necessity.” Under this exacting standard, it was not clear whether an employer could test its employees for COVID-19 before entering the workplace. The EEOC has now clarified that, because an individual with the virus will pose a direct threat to the health of others, employers may take steps to determine if employees entering the workplace have COVID-19, even if those steps involve a medical test. Accordingly, an employer may choose to administer COVID-19 testing to employees before they enter the workplace.

    The EEOC reminds employers that, consistent with the ADA, employers should ensure that the tests are accurate and reliable. Guidance from the U.S. Food and Drug Administration describes the rapidly developing field of COVID-19 testing, and advises which

    U.S. COVID-19: My Employee Has COVID-19 – What Leave Entitlements Apply?

    The call to HR is becoming more common:  I have COVID-19. Should I go on a leave of absence, and if so, will I be paid while I am out?

    It is clear that an employee who has tested positive for COVID-19 (or who is likely positive based on symptoms and/or exposure) should remain away from the workplace so as to avoid spreading the disease.  What can sometimes be less clear is what leave entitlements apply to the employee, and whether the employee will be paid for all or some portion of the leave.  When faced with these questions, employers should consider the following:

    Leave Entitlements Under Federal Law

    For employers covered by the new Families First Coronavirus Response Act (“FFCRA”), an eligible employee may be entitled to up to 80 hours of Paid Sick Leave, if the employee is unable to work (including telework) due to either:

    • Having COVID-19 and being advised by a healthcare professional to self-quarantine; or
    • Having symptoms of COVID-19 and seeking a diagnosis from a healthcare professional.

    Importantly, this leave is both job-protected and paid (subject to caps, although employers may permit employees to supplement these wages with other available accrued paid leave).  Of course, some employees who have COVID-19 are asymptomatic or have only mild symptoms and are able to keep working (remotely).  In these cases, the FFCRA does not apply.  Click here for our latest blog posts on the FFCRA.

    The federal Family and Medical Leave Act (“FMLA”) may

    U.S. COVID-19: Workplace Temperature Screening: How To Develop and Implement A Screening Protocol

    The notion that U.S. employers would engage in broad-scale temperature screening of employees would have once been essentially unthinkable.  But the realities of COVID-19 are changing the workplace, as least for the time-being.  With the encouragement of the Centers for Disease Control and Prevention (“CDC”) and some state and local governments, and in light of the blessing of the Equal Employment Opportunity Commission (“EEOC”), more employers are now considering the implementation of daily temperature screening[1] before employees enter the workplace.

    In Part 1 of our two-part series on temperature screening, we addressed the question of whether employers may (or must) implement a temperature screening protocol.  Here, in Part 2, we address the question of how to implement such a protocol, i.e. what procedures for temperature screening in the workplace should employers implement? Below are a number of issues for employers to consider:

  • Decide who will be screened. Some employers are screening only critical infrastructure workers who were or may have been exposed to a person suspected or confirmed to have COVID-19.  Other employers are screening all employees, and often are also screening any contract workers and visitors who enter the workplace, unless doing so would be virtually impossible (e.g., a grocery store screening all customers).  Although deciding who will be screened is essentially a business decision, at all times, employers must ensure that employees are selected for screening on a nondiscriminatory basis.
  • Decide who will do the screening. The options for who will do the screening range
  • U.S. COVID-19: Employee Temperature Screening: What Employers Need To Consider When Deciding Whether To Implement a Screening Process

    In light of concerns about the spread of the novel coronavirus in the workplace, employers are confronting important questions pertaining to the screening of employees for COVID-19 symptoms, including as it pertains to taking employees’ temperatures: May (or must) we screen employees for fevers, and if so, how should we implement such a practice?

    In Part 1 of this two-part blog series, we address issues relating to the decision of whether employers may (or must) implement a temperature screening protocol.  In Part 2, we will provide guidance on how to do so.

    Non-Discriminatory Temperature Screening Is Permitted

    Taking an employee’s temperature is considered a medical exam under the Americans with Disabilities Act (“ADA”) and would normally be subject to strict restrictions. However, the federal Equal Employment Opportunity Commission (“EEOC”) has expressly stated in updated guidance that employers are permitted to screen employees for fevers due to the COVID-19 pandemic.  Some state agencies are following suit; for example, the California Department of Fair Employment and Housing recently issued guidance indicating that temperature checks are permissible and non-discriminatory under the present circumstances, so long as they are conducted on all personnel entering a facility.

    Federal Guidance Supports Temperature Screening In Certain Circumstances

    At the federal level, the Centers for Disease Control and Prevention (“CDC”) has advised all employers to consider “community level spread” of COVID-19 when determining appropriate workplace precautions, stating that workplaces in communities with minimal to moderate community spreading should, among other things, “[c]onsider regular health

    U.S. Employers Weigh EEOC Guidance in Responding to Coronavirus

    As the coronavirus disease 2019 (COVID-19) continues to spread, U.S. employers considering taking preventative measures to reduce transmission should bear in mind employment laws that may restrict certain precautions, including the Americans with Disabilities Act (“ADA”).

    Basic precautionary measures like promoting washing hands, encouraging employees to stay home when they are sick, and other good hygiene practices recommended by the Centers for Disease Control and Prevention (“CDC”) are unlikely to raise concerns under the ADA.  Indeed, recent guidance from the Equal Employment Opportunity Commission (“EEOC”) makes clear that the CDC’s guidelines and suggestions for employers regarding COVID-19 do not violate the ADA.

    However, the ADA does prohibit covered employers from excluding individuals with disabilities from the workplace for health or safety reasons unless they pose a “direct threat” (i.e., a significant risk to the health or safety of others that can’t be eliminated by reasonable accommodation).

    Nonetheless, it is likely permissible for employers to ask employees who travel to or from an area affected by COVID-19 to work from home or, if remote work is not possible, take leave for 14 days (the incubation period for COVID-19) because the employees pose a direct threat under the ADA.   Whether the leave period must be paid or can be unpaid depends mostly on the employee’s classification under the federal Fair Labor Standards Act as “exempt” or “non-exempt,” the particular state laws of the state in which the employee works, and the employer’s own sick leave policies.

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