By Bello Welsh LLP
- What safeguards should employers consider implementing to protect employees (and customers, visitors, and vendors) after state and local authorities allow non-essential businesses to reopen?
The following list is compiled from guidance published by the Centers for Disease Control and OSHA:
- Develop an infectious disease preparedness and response plan
- Identify a workplace coordinator responsible for COVID-19 issues
- Identify which workers, customers, individuals may be exposed (or transmit), or where within the work place such exposure/transmission may occur
- Develop contingency plans
- Increased rate of worker absenteeism
- Need for social distancing, staggered work shifts, and other exposure-reducing measures
- Need to modify existing supply chains
- Actively encourage sick employees to stay home
- Review policies and consider implementing new policies (see Q&A 13, below) to make sure that policies and practices are consistent with public health recommendations, as well as applicable laws
- Support respiratory etiquette and hygiene
- Increase environmental cleaning and disinfection
- Maintain a healthy work environment (for example, improving building ventilation systems)
- Does fear of contracting COVID-19 justify an employee’s refusal to work on-site?
An employee’s fear about contracting the virus will not typically justify a refusal to work, unless the fear is related to a serious health condition. In that circumstance, the employee could be eligible for traditional FMLA leave subject to the normal notice and certification process, but only if the underlying condition would independently be eligible for FMLA leave.
That said, while not likely, an employee could refuse to work if he/she has a good faith, reasonable, and demonstrable fear that they are in “imminent danger” of immediate death or serious physical harm. According to OSHA and as applicable to COVID-19, the following conditions must be met before a hazard becomes an imminent danger:
- There must be a threat of death or serious physical harm. “Serious physical harm” means that a part of the body is damaged so severely that it cannot be used or cannot be used very well.
- For a health hazard there must be a reasonable expectation that toxic substances or other health hazards are present and exposure to them will shorten life or cause substantial reduction in physical or mental efficiency. The harm caused by the health hazard does not have to happen immediately.
- The threat must be immediate or imminent. This means that the employee must believe that death or serious physical harm could occur within a short time, for example before OSHA could investigate and remedy the situation.
There also is the potential that employees could cite to the protections for “concerted” activity as a basis for refusing to work. Section 7 of the National Labor Relations Act (NLRA) extends broad-based statutory protection to employees who engage in “protected concerted activity for mutual aid or protection.” This protection, which applies in both union and non-union environments, include circumstances in which two or more employees act together to improve their employment terms and conditions and could encompass situations where employees participated in a “concerted refusal” to work in unsafe conditions. If this situation presents itself, we strongly recommend consulting legal counsel before taking any action.
- Can an employer discipline or terminate an employee who refuses to report to work from a generalized fear of contracting COVID-19?
Generally, an employer may discipline or terminate a worker who refuses to work (or return to work). While in ordinary circumstances this would be deemed a resignation and disqualify the individual from receiving unemployment benefits, it remains to be seen how unemployment agencies will handle such cases in the context of COVID-19.
- Does the previous answer change if the employee refused to return to work for one of the reasons identified in the “CARES” Act that provides eligibility for unemployment benefits?
Probably not. Eligibility for unemployment is a distinct issue from the right to discipline or terminate an individual. The Coronovirus Aid, Relief, and Economic Security Act (“CARES Act”) provides for Pandemic Unemployment Assistance (“PUA”) for individuals who certify that they are otherwise able and available to work (within the meaning of state law), but are unemployed, partially unemployed, or unable or unavailable to work for a wide range of reasons related to COVID-19. For more information about expanded eligibility for unemployment benefits under the CARES Act, please see our Alert dated March 30th on this topic. That said, employers should consider the practical “fall-out” from terminating an individual in such circumstances in terms of employee relations, social media about the company, and the like.
- What if the employee refuses to return to work because he or she is in a high-risk group, such as over the age of 65 or with an underlying health condition?
This is a complex subject as it requires balancing obligations and rights in a way that is highly dependent on the facts of the situation. In the case of an underlying health condition, an employer would be required to explore reasonable accommodations for an employee who refuses to report to work because of a health condition that meets the definition of a “disability.” In accordance with EEOC guidance, accommodations could include: increasing distancing or installing barriers that reduce the chances of exposure; elimination of marginal job duties; temporary transfers to a different position; or modifying a work schedule or shift assignment. Employers may also choose to place an end date on the accommodation. An employer may also grant an accommodation on a temporary basis until, for example, government recommendations on social distancing are relaxed. These situations are highly fact specific, and you should consult with legal counsel if this type of scenario presents itself.
- Can employees insist that they be allowed to continue working remotely?
In most circumstances, no. There could be situations, however, where an employer would need to consider work from home as a reasonable accommodation for a “disability” under the ADA or applicable state law. To date, neither the EEOC nor the Massachusetts Commission Against Discrimination has provided guidance as to whether either would consider COVID-19 to be a “disability,” in and of itself. It is likely that there will not be a single answer to this question, and it may well depend on the severity and longevity of the COVID-19 infection for an individual. Again, if this situation presents itself, you should consult legal counsel before taking action.
- May employers implement health screening protocols before allowing employees to return to the workplace?
Yes, to determine whether those entering the workplace would pose a direct threat to health in the workplace. Appropriate health screening protocols may include asking about symptoms, taking workers’ temperature, and conducting or requiring COVID-19 tests.
Symptom screening: Employers may ask all who enter the workplace whether they have exhibited COVID-19 symptoms. When asking about specific symptoms, employers should rely on the CDC, other public health authorities, and reputable medical sources for guidance on emerging symptoms associated with the disease.
Temperature taking: Although measuring an employee’s body temperature is generally considered to be a prohibited medical examination, because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees’ body temperature. However, employers should be aware that some people with COVID-19 do not have a fever.
Employers that decide to take the temperature of those entering the workplace should consider various related logistical issues, such as: what type of device to use; who will be the temperature taker; what type of protective equipment should the temperature taker wear; and how to protect the health and confidentiality of the employees being tested.
COVID-19 testing: Yes. Although a COVID-19 test will be deemed a “medical test” and therefore it must be “job related and consistent with business necessity,” the latest guidance from EEOC is such tests are permissible.
Employers of course should ensure that the tests are accurate and reliable. For example, employers should review guidance from the FDA about what may or may not be considered safe and accurate testing, as well as guidance from CDC or other public health authorities, and check for updates.
Employers may also ask that employees have a COVID-19 test taken elsewhere, with the results presented to the employer before entering the workplace. The employer will be required to pay for the test.
Antibody testing: There is no specific guidance yet regarding whether an employer can take or require an antibody test, although ultimately, as the science around antibody testing develops, this is likely to be subject to the same standard as a COVID test. At this time, however, there remains substantial medical debate about whether the presence of COVID-19 antibodies means that the person with the antibodies is immune and, if so, how long the immunity lasts. And, although the FDA has approved certain antibody tests under its “emergency use” authority, as of yet, these tests have not been subject to rigorous validation studies. Further, the presence of antibodies does not rule out that the individual with antibodies has a current COVID-19 infection. Given the uncertainty, we recommend caution in this area, and further consultation before implementing this form of testing.
For information about maintaining the confidentiality of the results of health screenings, see Q&A 11 and 12, below.
- May an employer who implements health screening protocols before allowing employees to return to the workplace limit the screening protocols to high-risk individuals?
Likely no. Limiting screening to individuals who otherwise are protected by anti-discrimination laws, such as individuals over a certain age, who are pregnant, or who have underlying medical conditions, will be viewed by the EEOC and similar state agencies as unlawful discrimination.
- If an employee has symptoms of COVID-19 such as a fever, chills, or other symptoms recognized by the CDC or other governmental health authorities, can an employer send the individual home and when can they return to work?
Yes. Although an employee has a fever or other symptoms common to COVID-19, employers may (and should) send the employee home.
Current CDC guidelines indicate that individuals with COVID-19 who have self-isolated may leave isolation after having no fever for 72 hours without the use of fever-reducing medication, other symptoms have improved, and 7 days have passed since symptoms first developed. The most common period of time before an individual should return to work is, therefore, 14 days. We are unaware of any guidance from the CDC that directs how long an individual should self-isolate after having a fever but experiencing no other symptoms of COVID-19.
- May employers discipline employees who fail to follow employer-imposed safety policies/guidelines (including refusing to allow health screening)?
Yes, but of course discipline should be implemented in a manner unrelated to any protected status. For example, an employer may not discipline a “high-risk” individual (i.e., an older worker or one with an underlying medical condition) who refuses to follow safety guidelines, but not respond in a similar manner to an employee engaged in the same conduct who is deemed “low risk.”
- May an employer maintain records relating to health screening and, if so, how should these records be maintained?
Employers may- and should- maintain records of health screenings, including an employee’s statement that they have or suspect they may have the disease, or the employer’s notes or other documentation from questioning an employee about symptoms. However, as is required under the ADA, all medical information about a particular employee should be stored separately from the employee’s personnel file, and access should be limited.
- May an employer disclose the name of a worker who tests positive for COVID-19?
The answer to this is complicated, as the ADA and FMLA both prohibit the disclosure of information regarding the medical condition or history of an employee. Accordingly, many advisors recommend that employers disclose that a co-worker or visitor to the workplace has tested positive or been exposed to COVID-19 without disclosing any identities.
This unfortunately can conflict with efforts to control the potential spread of COVID-19. It is important from a public health perspective that those who have been in close contact with a person infected with COVID-19 be given sufficient information so they can take precautions to minimize the risk posed to themselves and others with whom they have close contact. We recommend that an employer seek permission from an infected individual to disclose his or her identify; if permission is refused, the employer should consider whether the public health benefit outweighs the risk. Consulting with legal counsel in such situations is strongly advised.
An employer also should ask an employee who has tested positive for COVID-19 for a list of all individuals with whom he or she came into contact in the workplace over the prior 14 days, as well as office areas and shared spaces visited. The fact that another individual has potentially been exposed should then be disclosed to anyone in the workplace who may have had contact with the infected individual, or who may have visited the same spaces within the offices over the prior few days (without necessarily disclosing the identity of the infected individual).
- What policies should employers consider implementing or updating as employees begin to return to the workplace?
Employers should review current policies and practices and/or implement new policies and practices, consistent with public health recommendations and applicable laws, relating to the following topics:
- Sick leave.
- Flexible work arrangements. This includes alternate worksites (telework), hours (staggered shifts), and meeting and travel options.
- Health and workplace safety standards, including physical layout (separating work-spaces to maintain distance), environmental controls, and personal protective equipment.
- Stagger scheduled breaks and presence in common areas (cafeterias).
- Are the circumstances of the pandemic relevant to whether a requested accommodation can be denied because it poses an undue hardship?
In general, an employer does not have to provide a reasonable accommodation if doing so poses an “undue hardship,” which means “significant difficulty or expense.” However, it is becoming clear that this concept, which has been interpreted narrowly and strictly by the EEOC and courts, will be applied more flexibly in the COVID context. The EEOC itself has published guidelines reflecting that an accommodation that would not have posed an undue hardship outside of the pandemic may pose one now. For example, EEOC has reflected that it may be significantly more difficult now to conduct a needs assessment or to acquire certain items, and delivery may be impacted, particularly for employees who may be teleworking. Similarly, EEOC has noted that it may be significantly more difficult to provide employees with temporary assignments, to remove marginal functions, or to readily hire temporary workers for specialized positions. Also, prior to the COVID-19 pandemic, the EEOC and courts typically found that most accommodations do not pose a significant expense when considered against an employer’s overall budget and resources. But, even the EEOC concedes that the sudden loss of some or all of an employer’s income stream because of this pandemic is now relevant, as are the availability of discretionary funds. If a particular accommodation poses an undue hardship, employers and employees should work together to determine if there may be an alternative that could be provided that does not pose such problems.