By: Aaron Hinton
As government officials take steps to “reopen” the U.S. economy, employers are likewise preparing to reopen the workplace under decidedly difficult circumstances. This article outlines several important considerations for employers as they plan for a post-quarantine return to work. Advanced planning will help employers create a safe work environment and mitigate potential litigation risk as employees return to work. As with all COVID-19-related guidance, employers should continue to monitor ongoing developments, including updates from federal, state and local officials.
The Occupational Safety and Health Act requires employers to provide a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm” to employees. Likely recognizing this is a tall order in the midst of a global pandemic, the Occupational Safety and Health Administration (“OSHA”) has issued advisory guidance on preparing workplaces for the unique challenges presented by COVID-19 (“OSHA Guidance”). Employers should make all reasonable efforts to comply with this guidance. In addition to ensuring the safety of employees, the OSHA Guidance may very well serve as a measuring stick by which employer actions are measured in the event of future litigation.
To help employers determine appropriate precautions, OSHA has divided job tasks into four exposure risk levels: very high, high, medium, and lower risk. Employers should assess their worksites in order to classify the COVID-19 exposure risk level of the various employee roles at each worksite and take appropriate steps to protect employees. The OSHA Guidance provides specific minimum standards for each of the four levels.
In addition to prescribing safeguards tailored to each exposure risk level, OSHA has also issued more general guidance entitled Ten Steps All Workplaces Can Take to Reduce Risk of Exposure to Coronavirus. Employers may also wish to consult the U.S. Centers for Disease Control and Prevention’s (“CDC”) recommendations for maintaining a healthy work environment during the current pandemic. These recommendations include the following:
- Worker Hygiene. Employers should consider all reasonable means to support adequate hygiene for workers, such as providing soap and hand sanitizer, posting signs to encourage frequent handwashing, and discouraging handshakes.
- Workplace Cleaning. Employers should consider steps to implement regular cleaning and disinfecting of frequently touched surfaces in the workplaces, such as keyboards, door handles, bathrooms, and elevator panels. Employers may also want to provide disinfectant wipes to enable employees to maintain a safe workstation.
- Social Distancing. Employers should also implement practices to encourage social distancing in the workplace. Examples include: limiting the number of employees per floor, spreading out workstations, reducing number of staff at reception desks, implementing “one way” hallways or paths through the workplace, and limiting the number of employees allowed in the elevators or bathrooms at any given time.
- Personal Protective Equipment. Many state or local orders currently require individuals to wear face coverings in public if they cannot maintain social distancing. Some orders also require employers to provide face coverings to employees in certain workplace conditions. Employers should consider requiring or encouraging the use of such face coverings, and providing face coverings for employees to use.
- Avoid Shared Workspaces. Employers may want to take steps to discourage employees from sharing workstations, phones, desks, offices, etc. Employers may also want to consider temporarily closing or restricting use of communal spaces, such as conference rooms and discussion areas.
REHIRING AND REINTEGRATION OF EMPLOYEES
As state and local officials begin to loosen stay-at-home restrictions, many employers will face decisions surrounding the rehiring (or not) of its employees. The rehiring and reintegration of employees involves a number of important considerations. Several of the more prominent examples are discussed below.
Non-Discrimination. First and foremost, the process for determining which employees to bring back and when must be done in a non-discriminatory manner. To ensure the absence of discrimination, all rehiring and onboarding decisions where the employer is not reinstating all employees at the same time should be made using objective criteria, the implementation of which does not have a disparate impact on members of a protected class (e.g., race, religion, gender, national origin). Employers should also take care to document the legitimate business reasons supporting these decisions.
Accommodations for High-Risk Employees. The CDC recently issued guidance concerning those who are at higher risk for severe illness from COVID-19, including older adults and individuals with serious underlying medical conditions. In general, employers should strongly consider special accommodations for members of any vulnerable population. However, it is important to note that employers cannot require vulnerable employees to stay home or accept certain accommodations on the basis of age or underlying medical conditions. Instead, employers should advise all employees of risks posed by COVID-19 present for vulnerable employees. When determining whether to grant accommodations for high-risk employees, employers should bear in mind both the requirements and prohibitions contained in the Americans with Disabilities Act (“ADA”).
Requiring (or Prohibiting) In-Person Attendance. Employers should be prepared to respond to employees who may be unable to return to the worksite in person or feel uncomfortable doing so. When possible, employers should consider allowing such employees to return to the worksite on a voluntary basis. Employers should also consider how they will respond to employees who want to return to the worksite but whose roles do not make them a priority for returning in person.
EMPLOYEE SCREENING METHODS AND PROCEDURES
The ADA generally prohibits an employer from conducting medical examinations and medical inquiries for employees. However, an exception to this general rule exists where there is objective evidence that an employee will pose a “direct threat” due to a medical condition. Recent guidance from the Equal Employment Opportunity Commission (“EEOC”) explains that the COVID-19 pandemic meets the standard required for that exception to apply.
As discussed in greater detail below, the EEOC guidance also identifies several ADA-compliant screening practices that employers may lawfully use to address the ongoing COVID-19 pandemic. When implementing these practices, it is important to note that the ADA requires that employers keep all medical information confidential, including records related to symptoms of COVID-19 or a diagnosis of COVID-19. Employers should also be mindful of the requirement that medical information be stored separately from personnel files.
COVID-19 Testing. The EEOC has advised that in light of the COVID-19 pandemic, employers may administer COVID-19 testing to employees before they are permitted to enter the workplace. Employers should ensure that the tests are accurate and reliable, including by referencing guidance from the U.S. Food and Drug Administration regarding what may be considered safe and accurate testing, as well as guidance from the CDC and other public health authorities. Employers should bear in mind the incidence of false-positives or false-negatives, and should note that testing may only reveal if the virus is currently present. As with other medical information, test results and related employee certifications should be kept confidential.
Temperature Screening. Although measuring an employee’s body temperature is generally considered a medical examination under the ADA, due to the community spread of COVID-19, employers are currently permitted to measure the body temperature of employees before entering the workplace. Employers who choose to conduct temperature checks may maintain a log of the results, but like all medical information, these records should be kept confidential.
Soliciting Health Information from Employees. Employers may ask all employees physically entering the workplace certain questions to determine if they have or may have COVID-19. These questions include whether they have COVID-19 or symptoms of COVID-19, and whether they have been tested for COVID-19. Once again, all medical information obtained through such an inquiry must be kept confidential.
Exclusion from the Workplace. In light of the current pandemic, employers may also lawfully exclude individuals with COVID-19, or those exhibiting its symptoms, from the workplace for health and safety reasons. Additionally, employers may send employees home if they have been diagnosed with COVID-19, or are displaying symptoms associated with COVID-19. Employers should consult the CDC for specific guidance regarding symptoms of COVID19.
If you have questions about the information discussed in this article or other challenges raised by the COVID-19 pandemic, Ray Quinney & Nebeker has developed a team of attorneys to assist you. RQN formed its COVID-19 Response Team to help clients manage the rapidly emerging and evolving legal issues caused by this global pandemic. During the last two months, RQN’s lawyers have assisted clients in responding to supply-chain disruption and force majeure events, telecommuting policies, FLSA compliance, leave and furlough policies, anti-price gouging laws, guidance on “critical infrastructure systems” regulations, as well as immigration restrictions caused by COVID-19.
Aaron Hinton practices in the Firm’s Litigation and Employment Sections and is monitoring related legal updates for the COVID-19 pandemic. His practice involves a broad range of commercial litigation, including contract disputes, business torts, and intellectual property matters. He also assists employers with all aspects of employment litigation and compliance with state and federal employment laws