Employment Amidst the COVID-19 Pandemic

There is no doubt that by this point, everyone knows of someone affected by COVID-19 in one way or another.  It appears that COVID-19 will affect both employers and employees for the foreseeable future.  So, what steps should be taken at this point in the pandemic.

What employers can do:

To survive the COVID-19 pandemic, employers can do things that help keep their employees, customers, and vendors safe. This includes the following list:

  • Require personal protective equipment such as masks, shields, gloves, hand sanitizer, contactless badge holders for identification.
  • Symptom screening, including new hires after conditional offer. You must screen all new hires and not just some, and employers can delay start dates if necessary.
  • Measure body temperature while at work and ask if employees have had COVID-related symptoms.
  • Send employees home if they are experiencing these symptoms.
  • Ask employees who have called in sick about their symptoms to determine the possibility of COVID.
  • Require an employee who has been out of work due to COVID to present a doctor’s note confirming they are fit to return.
  • Arrange testing to determine whether the virus is present in any employees. This falls under the “business necessity” requirement of the ADA concerning medical examinations. These tests must be reliable (see CDC guidance on antibody testing, not allowed).

What employers cannot do:

Although the pandemic poses new challenges, there are a number of things employers still cannot do such as:

  • Ask their employees questions that are likely to elicit information about disabilities. Disability-related questions can only be asked after an offer has been made and before work begins if every employee in that job category is subject to the inquiry, or during employment only if it is job-related.
  • Require antibody testing for employees to return to work.
    • The Center for Disease Control’s Interim Guidelines state that antibody test results “should not be used to make decisions about returning persons to the workplace.”
    • As testing and antibody testing improves, these guidelines may change.
  • Withdraw an offer or delay the start date of a hire who is pregnant or older than 65 solely because they are at greater risk for COVID-19 based on their age/pregnancy.
  • Treat employees differently based on any protected characteristic mentioned in Title VII of the Civil Rights Act. An example of this is favoring women over men for telework from home by assuming women have more childcare responsibilities.

What employers must do:

Employers also have certain obligations to continue to operate during the pandemic. Employers should:

  • Consider and adapt to changing accommodation needs due to telework or other differences in the workplace environment.
  • Confirm they are complying with the Occupational Safety and Health Act (OSHA).
    • Implementation of social distancing practices, testing, use of PPE, etc. to ensure the workplace is free from “recognized hazards that are causing or likely to cause death or serious physical harm.”
    • Communicate safety precautions to employees and take care that any safety concerns are being addressed.
  • Comply with the Families First Coronavirus Response Act (FFCRA) (applies to private employers with fewer than 500 employees only through the end of 2020)
    • Give 80 hours of paid sick leave at the employee’s regular pay to those who are quarantined and/or experiencing symptoms of COVID-19.
    • Give 80 hours of paid sick leave at 2/3 the employee’s regular pay to those who are caring for a quarantined individual or a child whose school or daycare is closed due to COVID-19.
    • Give employees who have worked with the employer for more than 30 days an additional 10 weeks of expanded leave at 2/3 their regular pay if they must care for a child whose school or daycare is closed.
    • Small businesses (fewer than 50 employees) may qualify for exemption from the requirement to provide leave to employees who need it due to school/daycare closures if it would jeopardize the viability of the business.
    • Notice to employees is required for FFCRA leave eligibility.
  • Keep all symptom screening/testing results stored separately from the employees’ personnel files to maintain its confidentiality.

Sources:

https://www.dol.gov/sites/dolgov/files/WHD/Pandemic/FFCRA_webinar.pdf

https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave

https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act

https://www.cdc.gov/coronavirus/2019-ncov/lab/resources/antibody-tests-guidelines.html

https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws

https://www.natlawreview.com/article/reopening-workplace-amid-covid-19-pandemic

https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf

Written by:

Allyson Smith, 1L at Washburn University, Legal Intern, The Austin Peters Group, Inc. 2020. allyson.smith@washburn.edu

Reviewed by:

Rebecca Crowder, President, The Austin Peters Group, Inc. bcrowder@austinpeters.com

Dedicated to:

Tony Oliverio, more than a COVID-19 Confirmed Death — a husband, brother, uncle, brother in law, businessman, and Veteran.