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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.

    Request for Accommodation Will Not Support Retaliation Claim Under Missouri Human Rights Act, SCOMO Holds

    Under Missouri law, a request for accommodation cannot serve as the basis for a retaliation claim.  Last month, the Supreme Court of Missouri issued a unanimous opinion in Lin v. Ellis, No. SC97641, 2020 WL 203145, at *5, — S.W.3d —- (Mo. banc Jan. 14, 2020) (per curiam), holding that “a mere request for an accommodation does not fall within the plain language of either the opposition or participation clause of” the Missouri Human Rights Act (“MHRA”), Mo. Rev. Stat. § 213.070.1(2).

    The Lin case arose out of an employee’s request from her employer to accommodate her request to avoid tasks that aggravated her chronic back pain after being diagnosed with two herniated discs.  Without requesting a doctor’s note, the employer provided the requested accommodation.  Subsequently, the employee’s back pain worsened, and she asked to be excused from performing certain tasks that required her to work at a bench with her back bent for extended periods of time.  The employer accommodated this request too and assigned her work that did not exacerbate her herniated discs.

    After an internal complaint was filed against the employee, the employer asked human resources to initiate a process with a view toward terminating the employee.  Simultaneously, the employer was informed that funding for the employee’s work under a grant was set to expire, thereby eliminating funding for the employee’s position.  After the employer informed the employee that the funding for her work was set to expire, and after discussing other work the employee could perform in light

    Sixth Circuit Holds Nonmember of Credit Union Lacks Standing to Bring ADA Claim Based on Allegedly Inaccessible Website

    In Brintley v. Aeroquip Credit Union et al., Case Nos. 18-2326/2328 (August 8, 2019), the Sixth Circuit Court of Appeals issued an order dismissing an Americans with Disabilities Act (“ADA”) claim alleging that the defendant credit union’s website was not accessible to the blind.  The Court of Appeals reversed the trial court’s decision allowing the case to proceed, finding that Brintley had failed to allege either that she was eligible for membership in the credit union or had a present intent to make herself eligible, and therefore lacked standing.  In so doing, the Court joined two other appellate courts that have similarly held that an individual who is ineligible for membership in a credit union fails to allege an injury in fact despite alleging visits to an inaccessible website.

    Read the full article here.

    Bryan Cave Leighton Paisner has extensive experience defending companies against website accessibility claims and regularly offers webinars on the topic to assist our clients in assessing compliance with the ADA. If you would like to schedule a similar webinar or presentation, or for more information on website accessibility or defending against such claims, please contact any of the attorneys listed.

    Website Accessibility Alert: Court Addresses Mootness Argument in Website Accessibility Case

    As businesses continue to face lawsuits and demand letters alleging that their websites are inaccessible to blind and deaf patrons in violation of the Americans with Disabilities Act (“ADA”), courts across the country continue to weigh in on the issue.  On Tuesday, June 4, 2019, the United States District Court for the Southern District of New York issued a decision in Diaz v. The Kroger Co. – holding that the Court lacked both subject matter and personal jurisdiction over the case because the complaint had been rendered moot by modifications defendant made to the website and because the defendant did not sell goods or services in New York.  Diaz v. The Kroger Co., Case No. 18-cv-07953, Opinion and Order [Dkt. No. 35].

    In Diaz, the plaintiff, a visually-impaired and legally blind individual who resides in the Bronx, New York, alleged that the website of defendant Kroger, a supermarket chain with its principal place of business in Cincinnati, Ohio, denied equal access to blind customers.  Kroger moved to dismiss the complaint on two grounds:  (1) for lack of subject matter jurisdiction because it remedied the barriers to access to its website, and (2) for lack of personal jurisdiction because it does not conduct business in New York.  The Court granted Kroger’s motion to dismiss on both grounds.

    In granting Kroger’s motion to dismiss for lack of subject matter jurisdiction, the Court noted that the facts of the case were different from other cases where courts found, “on the facts of those cases, that the defendants

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