Legal Responsibilities In The Time Of COVID-19
With businesses beginning to reopen and employees returning to work, you are likely faced with unchartered territory. The policies you design today are meant to remove ambiguity and enable decision making at a time when you are doing a lot of things for the first time.
On one hand, businesses are looking to instill confidence in employees and customers by proactively creating new policy aimed at protecting both from risk. On the other hand, you need to do this without introducing legal risk in the form of fines and lawsuits.
As you foray into this territory there are important categories of policy development that need to be considered through a legal lens.
Testing and screening
The pandemic presents unprecedented challenges for providing a healthy working environment. Naturally, the instinct of an employer would be to collect information from the employee intended to ascertain illness or risk of infection. To help mitigate some of the uncertainty, the Equal Employment Opportunity Commission (EEOC) recently issued updated guidance for employers that are considering screening and testing protocols for employees and job applicants.
The new EEOC guidance permits mandatory testing of employees for the presence of the COVID-19 virus prior to entering the workplace.
Essentially, because the ADA requires any mandatory medical tests of employee be “job related and consistent with business necessity,” the new policies identify that “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.”
During a pandemic, employers may ask sick employees if they are experiencing symptoms of the virus. What’s critical to remember is that all information about employee illness is considered a confidential medical record, and should be treated as such, in compliance with the ADA.
Testing does not always mean a test for the virus. Since fever is a marker for the virus, employers can consider measuring temperature, and they should understand that this temperature check is considered a medical exam. Because the Centers for Disease Control and Prevention (CDC) and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, you may measure employees’ temperature.
The EEOC’s guidance includes some caveats for employers wishing to conduct testing:
- Employers should ensure the tests are accurate and reliable.
- Employers may consider the incidence of false-positives or false-negatives associated with a particular test.
- Employers must remember that accurate testing only reveals if the virus is currently present, and a negative test does not mean an employee will not acquire the virus later.
With medical screening and testing comes an important responsibility around the protection of individuals’ medical information. The ADA has been very clear on this matter and requires all medical information about employees to be stored separately from their personnel file with limited access to this confidential information. Further, employers may maintain all medical information related to COVID-19 in existing medical files (employers do not need to create new COVID-19 files). Medical files are not just testing results. They would also include an employee’s statement that they have the disease or suspects he has the disease, or the employer’s notes or other documentation from questioning an employee about symptoms.
The EEOC FAQ, What You Should Know About COVID-19 ant the ADA, the Rehabilitation Act, and Other EEO Laws, covers this in depth should you want to explore the topic further.
Employers who are made aware of an employee who has been infected with the illness have an obligation to notify those who may have been exposed at the workplace of the risk. Contract tracing, like testing, is considered a medical record and must be treated as such.
Due to the contagiousness of the coronavirus, some employers are now deliberating whether to require their employees to use contact tracing apps to minimize transmission of COVID-19 at their workplaces. Although OSHA, the CDC and the EEOC have not specifically addressed use of contact tracing apps in the workplace, the available guidance highlights the importance of identifying those diagnosed with COVID-19 and identifying and notifying those with whom a potentially infectious individual has come into contact. Some states have begun to address contact tracing, so employers should be mindful of state privacy laws to ensure use of any contact tracing apps complies with applicable law.
While some apps communicate an individual’s location and medical information to the employer, others directly notify individual users if they have come in close contact with someone who has tested positive for COVID-19. Employers should consider the impact contact tracing apps have on employee privacy rights. To the extent employers receive and store medical information collected by the apps and inform other employees of possible exposure, employers must ensure all medical information is maintained in a confidential manner in accordance with the ADA.
Anti-harassment and anti-discrimination
With COVID comes important new considerations regarding anti-harassment and anti-discrimination. Employers and employees cannot discriminate, especially based on national origin or race. “Employers can help reduce the chance of harassment by explicitly communicating to the workforce that fear of the COVID-19 pandemic should not be misdirected against individuals because of a protected characteristic, including their national origin, race, or other prohibited bases.”
And, hiring decisions cannot be made on the basis of risk. The EEOC explicitly states that “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.”
Finally, employers should take care to implement all workplace safety measures, including any testing and contact tracing, in a non-discriminatory manner to avoid running afoul of the ADA, as well as other federal, state and local anti-discrimination laws.
Reasonable Accommodation for Disability
The EEOC has reminded employers that while the anti-discrimination laws, including the Americans with Disabilities Act ("ADA") and the Rehabilitation Act, continue to apply during the COVID-19 pandemic, these laws do not interfere with or prevent employers from following the guidelines and suggestions issued by the CDC or state and local public health authorities regarding COVID-19. This fine balance means that employers must make reasonable accommodations under a variety of circumstances.
For example, if a job may only be performed at the workplace, the employer may need to implement reasonable accommodations for individuals with disabilities who are at a higher risk from COVID-19 that allow them to perform the job. Accommodations for workers 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 and reduce chances of exposure. Temporary 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 the essential functions of the job while reducing exposure to COVID-19.
For reasonable accommodations to occur, it is necessary that an employee with an underlying condition that puts them at a higher risk for severe illness as a result of COVID-19 inform the employer, either directly or through a third party representative (such as a doctor), that he or she requires a reasonable accommodation for the underlying condition. They may request this reasonable accommodation in conversation or in writing but using the term “reasonable accommodation” in this communication is not required.
Employers are permitted to ask questions of employees with disabilities that request accommodations. For example, an employer may ask questions or request medical documentation (if it is not obvious or already known) to determine whether the employee has a "disability" as defined by the ADA. They may also request medical documentation to determine whether the employee's disability necessitates an accommodation. And in the event of accommodation requests from employees with preexisting mental health conditions, employers should treat it the same as they would with any accommodation request.
Employers should not postpone making a decision on an accommodation that will not be needed until an employee returns to the workplace (after teleworking ends) and should begin discussing the request immediately in an effort to acquire the information needed to make a decision. Employers may prioritize requests for accommodations that are needed while teleworking. And, temporary reasonable accommodations are permissible. Employers may also opt to provide a requested accommodation on an interim or trial basis, with an end date, while awaiting receipt of medical documentation.
An employer does not have to provide a particular reasonable accommodation if it poses an "undue hardship," which means "significant difficulty or expense." In some instances, an accommodation that would not have posed an undue hardship prior to the pandemic may pose one now.
If a particular accommodation poses an undue hardship to the employer, employers and employees should work together to determine if there may be an alternative that could be provided that does not pose such problems.
There is a consideration for employers hit hard financially due to the pandemic. Sudden loss of some or all of an employer's income stream is considered relevant in determining whether a reasonable accommodation may cause a “significant expense.” Also the amount of discretionary funds available at this time - when considering other expenses - and whether there is an expected date that current restrictions on an employer's operations will be lifted can factor into whether an employer makes reasonable accommodation. These considerations do not mean that an employer can reject any accommodation with costs attached; an employer must weigh the cost of an accommodation against its current budget while taking into account constraints created by the pandemic.
Transparency & tracking of legal changes
In addition to the medical accommodations and testing that we have discussed, your team is likely being asked to operate under different circumstances than prior to the pandemic. For example, they may not be sharing tools, or new sanitary procedures have been put into place. You may also be asking employees to physically distance from one another and from customers.
With new policies and changes to existing policies necessary, the responsibility is on employers to ensure they are vigilant in tracking compliance with them.
It is inevitable that among the new policies will be new safety and hygiene protocols as well an exposure-response plan that addresses employee’s obligation to report illness, the associated stay at home requirements, and exposure communications to staff. To ensure these important policies are understood and adhered to, employers should offer employees comprehensive training, complete with acknowledgement by the employee. Doing this helps employees understand the importance of the policy change, and also creates a trail of documentation in the event that disciplinary action is required for non-compliance.
Norman Ford is the VP of Compliance at Skillsoft.