COVID-19:  What Should Employers Consider as they draft a Return to Work Policy?

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With the White House unveiling its guidelines for opening up America again, responsibility has been placed on states and local officials to assess their preparedness to stay ahead of the spread of COVID-19, and when ready, reopen their economies. In anticipation of resuming operations in the new normal, the White House has also charged employers to “develop and implement appropriate policies” to keep workers and patrons safe from contagion. In doing so, employers should weigh their legal obligations with emerging guidance from health authorities when building their COVID-19 return to work policy.

The Legal Standards

  • OSHA

The Occupational Safety and Health Act of 1970 (OSHA) was passed to help ensure safe and healthful working conditions for American workers. For workers whose jobs place them in direct and continuous contact with the novel coronavirus, OSHA has established standards concerning the use of personal proactive equipment, like gloves, masks, and face shields.  For all employers, the Act’s “General Duty Clause” requires that employers provide “employment and a place of employment which are free from recognized hazards that are causing or likely to cause the death or serious physical harm to [its] employees.”

Seeing as the transmission of the coronavirus generally occurs via respiratory means from close personal contact with others, employers in the U.S. have a duty to devise and implement a plan that keeps their workers safe from the disease. However, in doing so, employers must act in a way that is well-reasoned in its approach and not discriminatory in its application.

  • EEOC & ADA

The Equal Employment Opportunity Commission (EEOC) is responsible for enforcing anti-discrimination laws affecting the workplace, including the Americans with Disabilities Act (ADA).  The ADA prohibits employers, in part, from discriminating against workers with specific health ailments that substantially limit activities that are considered fundamental to life such as speech, sight, mobility, and the ability to work and care for oneself.  To curb discrimination, the ADA prohibits employers from engaging in medical examinations of its workers unless that action is “job-related and consistent with business necessity.” However, in times of a pandemic, while ADA rules continue to apply, they must not interfere with an employer’s ability to fight COVID-19 per guidance from health authorities, including the Center for Disease Control and Prevention (CDC).

Guidance towards a Policy

The CDC has issued guidance that may assist in the prevention of exposure to COVID-19 in a non-healthcare workplace setting. The CDC’s advice intersects with EEOC and OSHA oversight. It is aimed at providing employers with actionable information that they can use as they develop and implement policies as recommended by the White House for opening America.

Policy considerations include:

  • Flattening the curve

The CDC recommends that employers create a culture that actively encourages and supports a policy requesting that sick workers stay at home. Workers who exhibit a respiratory illness while at work should be separated from all other workers and sent home. Employers should be flexible with sick-time, accrued time off, or other out of office policies and allow workers to use any type of leave available. Workers who have been advised by a healthcare practitioner to stay at home may be subject to a leave law; workers who stay home solely at the employer’s guidance may not be. Therefore, employers should proceed with caution when assessing an out of office request and review their policy against Federal and State leave laws.

Employers should also modify the workplace to help reduce COVID-19 contamination.  OHSA guidance includes eliminating communal desks, or other shared work equipment and tools when possible. Social distancing measures should also be implemented to allow workers to remain six feet apart. Block scheduling, delayed starts, and telework should be encouraged to reduce overcrowding in the workplace.

  • Maintaining a healthy workforce

The EEOC has provided guidance that permits testing and medical exams pursuant to the COVID-19 pandemic. However, that guidance differs depending on the pre-hire or post-hire nature of the relationship with the worker. Employers should take heed to revise their pre-hire policies and return to work policies accordingly to help ensure a safe workplace.

Before the start of employment, but after a conditional job offer has been made, applicants for employment may be screened for symptoms of COVID-19. If an employer proceeds with screening qualified applicants, it should do so for all new workers performing the same role.  Employers may delay the start of workers exhibiting COVID-19 symptoms or may withdraw the job offer altogether if they are not able to reasonably accommodate the need for a later start date.

Once employed as part of an employer’s return to work strategy, employers may mandate COVID-19 testing before a worker is permitted to enter the workplace. Testing options include antigen testing to assess active COVID-19 infection, antibody testing to assess prior COVID-19 exposure, and body temperature screening. The EEOC suggests that any examination administered be reasonably accurate and reliable. As such, employers will want to engage medical professionals and their legal counsel as they assess testing that meets their workplace needs.

If a worker is voluntarily disclosing or is otherwise diagnosed with COVID-19 colleagues within close proximity and frequent contact with the worker should be advised of their possible exposure. This requires the implementation of contact-tracing protocols to assess not only human interaction but sharing of work equipment in the 48 hours before diagnosis.  In most circumstances, employers should not identify the specific diagnosed worker. They must treat the worker’s diagnosis and related medical information as a confidential medical record in compliance with the ADA’s requirements. Only if necessary, the EEOC permits identification by the name of a COVID-19 positive worker that has been placed on a third-party’s job site, or to notify the public health authority.

  • Seeking accommodation

The CDC has identified older adults and individuals with underlying severe medical conditions as being at an elevated risk for serious illness from COVID-19. As such, employers should engage in an interactive discussion concerning accommodation if a worker refuses to return to work as a result of their risk of severe illness stemming from COVID-19. Typically an employer will require documentation from a health care provider to support the accommodation request.  However, because of COVID-19, it may be impractical, if not burdensome, to do so. Therefore, employers should consider a flexible approach when assessing the worker’s accommodation request.

Employers should also expect to encounter some workers who are not at a higher risk of complications from COVID-19 but who are fearful of returning to the workplace because of possible exposure to COVID-19. If a worker is a caretaker for others, in particular the ill or infirm, or in some cases children, that worker may be entitled to protected time off and pay. In these cases, employers must engage in a conversation concerning the legitimacy of the worker’s fears in light of the policy and standards implemented by the employer to help combat exposure to COVID-19, and if necessary, reasonably accommodate the worker’s need to remain out of the workplace.

  • Addressing state requirements

Several states have issued directives that either provide a general framework for reopening or have established specific protocols by industry required to resume operations. Employers must be mindful of these edicts as they develop their COVID-19 return to work policies.

For example, employers in Indiana, Kentucky, Texas, and Vermont must all establish processes to screen employees for COVID-19 before returning to work.  In some cases, lab-confirmed COVID-19 testing may be required.

Other states have developed health screening templates for completion and review before a worker’s shift.  While Colorado does not mandate the use of the form but encourages employers to adopt it, Delaware requires that high-risk businesses like medical care providers, childcare workers, and residential facilities or shelter operators are screened against the state’s questionnaire.

Some states have also issued requirements aimed at specific businesses like Georgia, which has established parameters for reopening gyms and fitness centers that includes the screening of workers and patrons of the facility.  Many states have also established recommended protocols for screening food service workers and retailers, such as Arkansas, Michigan, Minnesota, Mississippi, Nebraska, Nevada, New Mexico, and Washington D.C., amongst others.

In some states, local governments have enacted reopening measures that supplement or supersede a state’s directive.  For example, while some state governments have permitted reopening, some municipalities have chosen to slow their reopenings.  And some cities have gone further to restrict workplaces to 50% occupancy or require that employers continue to maintain telework policies when applicable.

Closing Thoughts

As employers prepare to reopen their workplaces, several legal issues are in play. Employers should devise COVID-19 return to work policies per CDC and OHSA guidance that work towards reducing the spread of COVID-19 while maintaining healthy work environments and act by following state and local requirements. Most importantly, those policies should be drafted and implemented in a non-discriminatory manner with the support of legal counsel.

Alonzo Martinez

Alonzo Martinez

Alonzo Martinez is Associate Counsel, Compliance at HireRight. Mr. Martinez is responsible for monitoring and advising on key legislative and regulatory developments globally affecting HireRight’s service delivery. His work is focused on ensuring HireRight’s performance as a consumer reporting agency and data processor complies with relevant legal, regulatory, and data furnisher requirements. Mr. Martinez obtained his Juris Doctorate from the University of Colorado, and is licensed by the Supreme Court of the State of Colorado. He is a member of the Colorado Bar Association Employment Law Division, the Association of Corporate Counsel, and the Professional Background Screening Association.

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