Coronavirus and the Workplace: Guidance for Employers Resuming Operations
As states and localities begin to relax shelter-in-place requirements and allow businesses to reopen, the coronavirus pandemic presents new challenges for employers. In addition to operational and logistical questions surrounding reopening, employers must navigate issues relating to workplace safety, medical privacy, hiring and re-hiring, preventing discrimination and harassment, employee time off, reasonable accommodations, and flexible work arrangements. Below is a summary of considerations for employers as they resume operations and return employees to work.
Employers are required to maintain a hazard-free work environment, which includes taking steps to prevent the spread of coronavirus. Employers should continue to monitor and follow guidance from the Centers for Disease Control and Prevention, the Occupational Safety and Health Administration, and California’s Occupational Safety and Health Administration. Employers who fail to follow workplace safety guidelines may be subject to worker’s compensation claims from employees who contract the disease, as well as enforcement actions and other potential civil claims.
As employees return to work, tension and fear may be running high. To reduce panic, employers should be transparent about safety measures they are implementing so that employees feel comfortable returning. Employees should be encouraged to raise concerns about health and safety with management without fear of retaliation.
Medical Screening and Privacy
During the coronavirus pandemic, employers are permitted to make certain medical inquiries which would otherwise be impermissible. The U.S. Equal Employment Opportunity Commission (EEOC) and California’s Department of Fair Employment and Housing (DFEH) have issued guidance allowing employers to take employees’ temperatures, send employees with coronavirus symptoms home, ask employees if they are experiencing symptoms of coronavirus, and ask employees why they are taking sick leave.
Recently, the EEOC issued additional guidance allowing employers to test employees for COVID-19 before allowing them to return to work. However, employers must ensure that the tests are “accurate and reliable,” and the EEOC encourages employers to review Food and Drug Administration guidance regarding which tests are safe and accurate. While employers may also require a note certifying fitness for duty in order to return to work, the EEOC cautions that many medical offices are overloaded and employees may have difficulty obtaining the notes – which might force employers to be flexible about medical certification requirements.
Any employers taking temperatures, administering COVID-19 tests, or asking employees about symptoms should maintain all information collected as a confidential medical record in compliance with the Americans with Disabilities Act, the Health Insurance Portability and Accountability Act, and state and federal privacy laws.
Hiring, Rehiring, and Reintegrating Employees
Businesses that went through layoffs may find themselves hiring or rehiring a significant number of employees. These employers must ensure that age, medical condition, disability, and other prohibited considerations are not part of the hiring process. For example, intentionally hiring only young and seemingly healthy workers would run afoul of anti-discrimination laws. Employers may not withdraw job offers or unilaterally delay start dates for applicants identified as having greater risk associated with COVID-19, but they may discuss with those applicants whether they would like to defer their start date or work from home.
Employers are permitted to screen applicants for symptoms of COVID-19 after making a conditional job offer, so long as they do so for all applicants entering the same type of job. If an applicant tests positive, the employer may either delay the applicant’s start date or withdraw the job offer (if the employer needs the applicant to start immediately).
Businesses that went through furloughs – or had a completely remote workforce – may face difficulty in simultaneously reintegrating a large volume of employees back into the workplace. Those employers may want to return employees in waves to streamline the process and reduce administrative burden. Again, employers should be careful to avoid acting based upon prohibited bias. For example, employers should not invite only young and non-disabled workers back to the workplace while requiring older employees or those with disabilities to stay home. Employers might consider allowing employees to volunteer to return to work (on a first come, first served basis, consistent with business need) to avoid any perception of discrimination and to support employees with varying comfort levels.
Ensuring a Workplace Free of Discrimination and Harassment
The coronavirus pandemic has resulted in an increase in anti-Asian bias, rhetoric, and harassment. The EEOC has encouraged employers to remind employees that discrimination and harassment will not be tolerated, and to reinforce managers’ responsibility for preventing and reporting discrimination and harassment.
Employee Time Off
Employers should remain mindful that the new Emergency Paid Sick Leave and Emergency Paid FMLA Leave authorized by the Families First Coronavirus Response Act are available to workers through December 31, 2020. Local municipalities, including San Francisco, have also enacted sick leave laws. Thus, even after the shelter-in-place orders are lifted, some workers may experience a qualifying reason for those types of leave.
Employers who have not done so already should provide notice to their employees about the federal leave, and may wish to develop a policy concerning coronavirus-related time off options or a form for employees to request coronavirus-related leave.
The obligation to reasonably accommodate employees with disabilities remains in full force. Employees with underlying medical conditions placing them at greater risk related to COVID-19 may be entitled to additional accommodations, such as working from home or working in a private office to minimize exposure. In addition, the EEOC has noted that employees with preexisting mental health disabilities may have more difficulty handling COVID-19’s disruption to daily life, and therefore may require additional accommodations during this time.
At the same time, the EEOC has acknowledged that current economic conditions may impact the “undue hardship” analysis. An employer considering a request for accommodation may take into account whether current circumstances create “significant difficulty” in acquiring or providing certain accommodations. For example, it may now be significantly more difficult for employers to conduct a needs assessment, acquire equipment, provide temporary assignments, remove marginal functions, or hire temporary workers. Employers experiencing financial hardship (such as “the sudden loss of some or all of an employer’s income stream” or a reduction in discretionary funds) may be able to demonstrate that a requested accommodation is an undue hardship. Employers considering whether to deny an accommodation on this basis should consult with counsel.
Flexible Work Arrangements
Given that the threat of contracting coronavirus will likely extend long after the shelter-in-place orders expire, employers should be thoughtful about flexible work arrangements that might allow some employees to continue working from home. For example, some employees may not feel comfortable returning to work because they are either at a high risk of contracting the disease themselves, or because they live with someone who is at a high risk of contracting the disease. Where feasible, employers should consider allowing employees to return to the office on a voluntary basis, while continuing to support employees who are able to work from home. Another option would be to implement a rotation system whereby a portion of the workforce returns for a period of time, then a different portion of the workforce returns for a period of time.
As businesses begin to reopen and workers return to their workplaces, employers are navigating a wide range of issues. Employers should remain vigilant, stay up to date on regulatory guidance, and consult with counsel about the best ways to satisfy legal requirements while meeting business needs.