All 50 states are moving towards some level of reopening businesses following closures caused by the COVID-19 pandemic. Employers naturally have a number of questions and concerns relating to how to safely bring their employees and customers back into the workplace in compliance with existing guidance. Employers should develop written return-to-work plans that comply with applicable directives that are then communicated to their employees as part of the reopening process.
The CDC, individual states, OSHA and the EEOC have all provided guidance on reopening from each agency’s unique perspective. This is the first in a series of posts examining the reopening guidance provided to date. Note that each agency has its own set of rules and regulations that need to be considered holistically to ensure compliance.
We will start with the EEOC. The EEOC has provided a number of resources for employers that discuss how to address the health and safety concerns triggered by COVID-19, while still staying within the bounds of the ADA and Federal anti-discrimination laws. The EEOC’s COVID-19 guidance can be found here.
As a starting point, the EEOC explicitly states that the pandemic does not excuse compliance with Federal anti-discrimination and harassment statutes. The EEOC also notes an uptick in discrimination and harassment charges on the basis of race or national origin filed by Asian employees. So even though COVID-19 has caused significant disruption in the workplace, employers need to remember the “basics” of anti-discrimination and harassment rules and that they need to be considered when making reopening or return to work decisions.
That said, the majority of the EEOC’s guidance discuss how an employer can maintain a safe workplace while remaining in compliance with the ADA’s limitations on disability-related inquires, medical exams, and reasonable accomodation requirements. Common employer questions touching on these points are discussed next.
Does COVID-19 qualify as a disability under the ADA?
That depends on the nature and severity of the resulting illness. If an employee experiences prolonged and serious symptoms, it makes it more likely the EEOC will consider the employee disabled and entitled to the ADA’s protections. Depending on the length and severity of the illness, employers should exercise caution when making any adverse employment decision impacting those employees it knows have suffered from COVID-19.
The EEOC has however confirmed that the severity of the pandemic allows employers to bar an employee with COVID-19 from the workplace because the “direct threat” standard under the ADA is met. As a reminder, a “direct threat” is created if there is “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” Because the EEOC has confirmed the existence of a “direct threat,” employers have more flexibility regarding screening and medical exams for COVID-19 than they would otherwise.
What kind of screening questions can I ask employees before allowing them into the workplace or if they are calling in sick?
Any inquires need to be limited to COVID-19 symptoms as established by the CDC or other public health authority. In Illinois, the Department of Public Health has provided a list of potential symptoms that can be found here and the CDC’s list can be found here. Employers should remember the symptom list has changed over time as the virus is better understood, thus making it necessary to review the screening questions on a regular basis to ensure they are kept updated.
Can I take an employee’s temperature prior to allowing them back into the workplace?
Yes. Since taking an employee’s temperature generally qualifies as a medical exam, doing so represents a significant change from what employers are typically allowed to do in the workplace. The employer’s written return-to-work policy should discuss this process and note whatever temperature range is needed in order to access the workplace.
The EEOC cautions however that a temperature check does not always confirm whether an employee may have COVID-19, thus making other screening questions necessary. Best practice is to use an infrared digital thermometer as opposed to an oral thermometer, as that is less invasive and easier to disinfect between uses. If any employer opts to screen by temperature, the process should be applied uniformly to all similarly-situated employees. Note that hourly employees may need to be paid for the time spent screening by temperature or otherwise prior to entering the workplace.
Are there confidentiality requirements if I take my employees’ temperatures or require them to answer health screening questions?
Yes. The ADA’s requirement that medical information must be kept confidential and separate from an employee’s personnel file applies to temperature logs and responses to COVID-19 screening questions. Creating a separate COVID-19 confidential file is not necessary, but the typical ADA requirements for maintaining confidential medical information do apply. This includes keeping any temperature log confidential, as opposed to remaining out in a common area if employees are responsible for taking their own temperature.
Exceptions to the confidentiality requirements include reporting a positive COVID-19 test to public health officials or a staffing agency if the employer learns a loaned employee tests positive.
Who should be responsible for taking an employee’s temperature?
To ensure uniform treatment and limit disseminating confidential health information, if possible, employers should identify one person responsible for temperature screenings. If there is a nurse or other medical professional onsite, that person should be designated. If not, the employer should train the designated employee in the temperature screening process. The person responsible for temperature checks should be provided appropriate PPE (i.e. mask, gloves and gown), should have his or her own temperature and symptoms screened first, and the screening process should employ social distancing and staggered start times or days to ensure employees are not crowded together during the screening process. Another option is to have employees self-administer the temperature check, either before reporting to work or at a designated location, then communicate the results prior to entering the workplace.
Can I bar an employee from entering the workplace or require them to go home if they exhibit any symptoms of COVID-19?
Yes, assuming the symptoms screened for are recognized by the CDC or other public health agency. Sending employees home should be done in a uniform and consistent manner.
Can I require documentation demonstrating an employee is fit for duty prior to allowing a return to work?
Yes, but the EEOC notes that providers may be too busy to complete detailed fit for duty paperwork at this time. Employers should be flexible regarding what type of documentation they will accept to demonstrate an employee has tested negative for COVID-19.
How should I handle returning “higher risk” individuals to work?
The CDC has classified certain groups as being at “higher risk” for becoming severely ill from COVID-19. That information can be found here. Although employers may want to protect those employees from exposure by delaying their return to the workplace or limiting assignments that involve travel or potential exposure, the EEOC cautions against doing so unless the employee requests a reasonable accommodation or returning the employee poses a direct threat that cannot be mitigated through the accommodation process.
In the same vein, the EEOC specifically notes that the start date for a new employee who is older than 65 or pregnant cannot be delayed simply because they are in a higher risk group for COVID-19 complications. Employers should also be aware that delaying the return of existing employees with underlying health conditions, over 65, or pregnant triggers potential disability, age and pregnancy discrimination claims.
For those employees that are in a higher risk group that request an accommodation and provide documentation confirming the underlying medical condition, the EEOC provides accommodation suggestions including:
- additional or enhanced protective gowns, masks, gloves, or other gear beyond what the employer may generally provide to employees returning to its workplace;
- additional or enhanced protective measures, for example, erecting a barrier that provides separation between an employee with a disability and coworkers/the public or increasing the space between an employee with a disability and others;
- elimination or substitution of particular “marginal” functions (less critical or incidental job duties as distinguished from the “essential” functions of a particular position);
- temporary modification of work schedules (if that decreases contact with coworkers and/or the public when on duty or commuting);
- moving the location of where one performs work (for example, moving a person to the end of a production line rather than in the middle of it if that provides more social distancing); and
- Telework, leave or reassignment to a different position.
Although the EEOC provides some suggestions on potential reasonable accommodations, its recent guidance also recognizes a more flexible application of the “undue hardship” standard (defined as involving “significant difficultly or expense”) in light of the pandemic conditions. This includes difficulty in acquiring certain items, providing assessments, hiring temporary workers, or cost of accommodations generally given that many employers have seen a significant reduction in revenue as a result of COVID-19.
What about accommodations related to workplace requirements for masks or other PPE?
Given CDC and state-level guidance, many employers are now requiring employees to wear masks, other face coverings, or gloves in the workplace. The EEOC notes these requirements and confirms that employers are obligated to engage in the interactive process and find accommodations for disability or religious reasons including:
- non-latex gloves;
- modified face masks for interpreters or others who communicate with an employee who uses lip reading;
- modified or alternative face coverings for individuals with respiratory or other issues;
- gowns designed for individuals who use wheelchairs; and
- modified equipment due to religious garb.
Like the reasonable accomodation process for employees in the higher risk categories, employers should think creatively to determine whether they can accommodate issues related to PPE while still ensuring they comply with workplace safety rules requiring its use.
A common thread through the EEOC’s guidance is that what is reasonable and acceptable today may change as COVID-19 is better understood and public health guidance is updated. Because of that, employers should check for new guidance regularly and update their COVID-19 protocols accordingly.