This is a challenging time for employers, and since conditions are changing rapidly it may be difficult to stay up to speed with the rules and regulations. EEOC guidance and interpretation of what is permissible under the ADA and Title VII is evolving and may continue to change as circumstances develop. Given this, you should check with counsel to make sure that you are operating under the most current EEOC and CDC guidance.
As an employer, below are some questions you may find yourself facing in the upcoming weeks:
Q: What are some protocols to help protect my workforce from COVID-19?
A: An employer may require employees to wear protective gear, such as masks and gloves. Employers may suggest regular hand washing and social distancing protocols. Employers should continue to take temperatures and ask questions about symptoms of all those entering the workplace.
Q: Can I administer COVID-19 tests before I allow employees to return to work?
A: Employers may require COVID-19 tests to be administered to all employees to detect the presence of the COVID-19 virus before permitting employees to enter the workplace. The testing must be job related and consistent with job requirements. For example, if an individual with the virus would pose a direct threat to the health of other employees, then an employer may require them to be tested. Employers should ensure that the tests are accurate and reliable, consistent with the ADA standards.
Q: If I have a case of COVID-19 in my workplace do I need to report it?
A: There is no general requirement for employers to report cases of COVID-19 among its workforce. However, an employer may disclose the name of an employee to a public health agency when it learns that the employee has COVID-19.
Q: What accommodations must be offered to those in the high risk population (for example 65+, pregnant, or underlying condition)?
A: If a job may only be performed at the workplace, there may be reasonable accommodations for individuals with disabilities who are at a higher risk from COVID-19 which allow them to perform the job. Temporary restructuring of marginal job duties, temporary transfers to a different position, modifying a work schedule, or shifting assignment may allow an individual with a disability or higher risk if exposed to perform the essential functions of their job.
Q: If an employee asks for accommodations can I require proof of the underlying condition?
A: An employee with an underlying condition that puts the employee at a higher risk for severe illness as a result of COVID-19 must inform the employer that they require a reasonable accommodation. If an employee requests an accommodation for a medical condition an employer may ask questions or request medical documentation to determine whether the employee is a high-risk individual?
Q: What are accommodations in the workplace to help reduce contact?
A: A change to the workplace that limits contact is designating one-way aisles. Another way to ensure the minimum distances allowed between customers and coworkers is by using plexiglass, tables, or other barriers. Accommodations that may eliminate or reduce direct exposure includes protective gowns, masks, and gloves. Another reduction of contact is by eliminating non-essential tasks from the job duties, temporary modification to work schedules, or moving an employee’s work location.
Q: Can I layoff or furlough those in the high-risk population?
A: There are laws protecting against discrimination in the workplace that still apply during COVID-19. Pregnant employees are protected under the Pregnancy Discrimination Act of Title VII, and the Age Discrimination in Employment Act prohibits discrimination against those who are 40 or older. In addition, an employer cannot postpone a start date or withdraw a job offer because the individual being hired is 65 years old or pregnant. An employer can only take such an action if the employee’s disability poses a “direct threat” to his or her health that cannot be eliminated or reduced with reasonable accommodation.
Q: What if there is harassment present in the workplace due to COVID-19?
A: Employers can help reduce the chance of harassment by expressing to the employees that the COVID-19 pandemic should not be misdirected against individuals because of their national origin or race. The EEOC has resources to assist employers in this area, including anti-harassment tools.