The 2019 novel coronavirus (COVID-19) is drastically changing the way we socialize, shop, and work. Fox, O’Neill & Shannon, S.C.’s utmost concern is for the health and safety of our clients, staff and their families.
In an effort to protect their employees and businesses, employers may contemplate actions which could unintentionally implicate employment laws. The U.S. Department of Labor (DOL) and Equal Employment Opportunity Commission (EEOC), among other agencies, have provided guidance as to issues which employers may face in dealing with COVID-19.
Congress has passed significant COVID-19 relief legislation, the Families First Coronavirus Response Act (FFCRA) to help to provide relief from the health and economic consequences of the COVID-19 outbreak, which has now been signed into law by President Trump. For additional information on the FFCRA, please see FOX, O’NEILL & SHANNON, S.C. CORONAVIRUS UPDATE – REVISED FAMILIES FIRST CORONAVIRUS ACT (H.R. 6201).
While nothing is certain in this pandemic, the following information may provide guidance for workplace actions contemplated in response to COVID-19. Note that the following information is the best available to FOS at this time, and the federal guidance upon which it relies may be supplemented, modified and/or withdrawn at any time.
Please also note that while the DOL and EEOC have issued this guidance regarding steps that employers may take, that does not mean that it is feasible or advisable for all employers to engage in such measures. If you are thinking about implementing new policies or procedures for your employees or businesses, please contact the attorneys at FOS if you have any questions about the potential intended and unintended consequences of such actions.
DEPARTMENT OF LABOR GUIDANCE REGARDING UNEMPLOYMENT INSURANCE
The DOL, on March 12, 2020, issued new guidance outlining “flexibilities” which states have in administering their unemployment insurance programs in response to COVID-19.
While each state administers its own unemployment insurance program, the states generally follow the federal guidelines.
The guidelines permit flexibility for states to amend their laws to provide unemployment insurance benefits in many situations related to COVID-19, including where employment is not permanently terminated. The guidelines, for example, allow states to pay benefits where: (1) An employer temporarily ceases operations due to COVID-19, preventing employees from coming to work; (2) An individual is quarantined with the expectation of returning to work after the quarantine is over; and (3) An individual leaves employment due to a risk of exposure or infection or to care for a family member. Federal law does not require an employee to quit to receive benefits due to the coronavirus’ impact. Wisconsin, like many other states, has not provided guidance yet, but we expect that the states will work to largely adopt compatible rules to these new federal recommendations.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION GUIDANCE REGARDING THE ADA
During the H1N1 pandemic, the EEOC issued guidelines which, while not explicitly applicable to COVID-19, may be analogized to current pandemic, and are relevant today.
These guidelines apply to employers covered under the federal Americans With Disabilities Act (ADA) (i.e., all employers with 15 or more employees) and the Rehabilitation Act, which prohibit discrimination, and require reasonable accommodations, against persons with disabilities. They may also overlap with other federal anti-discrimination statutes. Although we expect that federal guidance will be instructive on these issues, employers must also be mindful of state employment laws which may also be implicated. While the federal anti-discrimination laws continue to generally apply, these H1N1 pandemic guidelines may help employers forced to take certain actions in response to COVID-19. For example:
- During the pandemic, an employer may ask an employee why the employee has been absent from work if the employer suspects it is for a medical reason. This not a disability-related inquiry. An employer is always entitled to know why an employee has not reported for work.
When an employee calls in sick during the pandemic, to protect the rest of the employer’s workforce, the employer may ask the employee if he or she is experiencing symptoms of
- COVID-19. According to the Centers for Disease Control and Prevention (CDC), symptoms include fever, cough and shortness of breath. The employer must maintain all information about an employee’s illness as a confidential medical record under the ADA.
- Because the CDC and state and local health authorities have acknowledged COVID-19 community spread and issued corresponding precautions, employers may measure employees’ body temperature. Note, however, that this action is considered a medical examination under the ADA, and implicates significant privacy and implementation concerns. Employers should also consider the fact that individuals with COVID-19 may not have a fever in determining whether to take this action.
- Because the CDC has stated that employees ill with symptoms of COVID-19 should leave the workplace, employers may require such employees to leave the workplace.
- Employers may require employees returning to work after an illness to provide a doctor’s note certifying their fitness for work and that they do not have COVID-19. As a practical matter, doctors may be too busy to provide such notes, in which case an employer may decide to rely on forms, stamps, or emails to certify that an employee does not have the virus.
- An ADA-covered employer generally may not ask employees who do not have COVID-19 symptoms to disclose whether they have a medical condition that the CDC says could make them especially vulnerable to COVID-19’s This, however, is a complicated issue, under the ADA generally and as it relates to COVID-19 specifically.
Such a question may be asked only when the pandemic becomes more severe or serious according to the assessment of local, state or federal public health officials, and an employer has sufficient objective information from public health advisories to reasonably conclude that employees will face a direct threat if they contract COVID-19. Then and only then may an employer make disability-related inquiries or require medical examinations of asymptomatic employees to identify those at higher risk of virus complications.
If you are considering asking apparently asymptomatic employees such questions, your FOS attorney can work through the specific analysis with you.
If an employee voluntarily discloses (without a disability-related inquiry) that he or she has a specific medical condition or disability putting the employee at increased risk of COVID-19 complications, the employer must keep this information confidential. The employer may ask the employee what type of assistance will be needed (e.g. telework or leave for a medical appointment). Employers should not assume that all disabilities increase the risk of COVID-19.
- An employer may encourage employees to telework (i.e., work from an alternative location such as home) as an infection-control strategy during the pandemic. Note also that employees with disabilities putting them at high risk for complications of COVID-19 may request telework as a reasonable accommodation to reduce their chances of infection.
- An employer may require employees to adopt infection-control practices, such as regular hand washing, at the workplace.
- An employer may require employees to wear personal protective equipment (e.g., face masks, gloves, or gowns) designed to reduce the transmission of COVID-19. However, when an employee with a disability needs a related reasonable accommodation (e.g., non-latex gloves, or gowns designed for individuals who use wheelchairs), the employer should provide these, absent undue hardship.
- An employer must continue to provide reasonable accommodations for employees with known disabilities unrelated to the pandemic, barring undue hardship. Only when an employer can demonstrate that a person with a disability poses a direct threat, even after reasonable accommodation, can it lawfully exclude the employee from employment or employment-related activities.
If an employee with a disability needs the same reasonable accommodation at a telework site that existed at the workplace, the employer should provide that accommodation, absent undue hardship.
In addition to these specific guidelines, the best course for employers is to use their common sense. An employer, for example, should not single out employees of certain national origins due to an irrational fear that these employees have been exposed to COVID-19. Such action could subject the employer to a Title VII discrimination claim.
This is a scary time for all of us. No matter how many guidelines the government issues, no one has a map showing the perfect route to navigate COVID-19, whether for our families or our workplaces. Just as it has done for over 50 years, Fox, O’Neill & Shannon, S.C. is here for you and your families. Please contact your FOS attorney for any questions you may have regarding COVID-19 or any legal issue.
Fox, O’Neill & Shannon, S.C.