MY EMPLOYEES ARE COMING BACK TO WORK. NOW WHAT?

As stay-at-home orders and other restrictions change, employers will be faced with decisions effecting safety and liability.  The Americans with Disabilities Act (ADA) must be complied with when returning employees to work.  

CAN I SCREEN EMPLOYEES FOR COVID-19 WHEN THEY RETURN TO WORK?  

Employers comply with the ADA if screening is consistent with advice from the CDC and public health authorities. The Equal Employment Opportunity Commission (EEOC) confirms employers can request certain health information from workers during the COVID-19 outbreak.  

This includes continuing to take temperatures and asking about symptoms of those entering the workplace.  However, employers should avoid disparate treatment based upon protected characteristics in screening decisions.  

Employers should limit questions to symptoms discussed by the CDC and other public health authorities.  Specifically, employers can inquire if employees are experiencing fever, chills, cough, shortness of breath, or a sore throat.  Additional symptoms have been added by the CDC such as new loss of smell or taste as well as gastrointestinal problems, such as nausea, diarrhea, and vomiting.   

The same rules apply in terms of maintaining all health information as a confidential medical record in compliance with the Americans with Disabilities Act.

COVID-19 Test Screening

The EEOC says an employer can administer a COVID-19 test (a test to detect the presence of the COVID-19 virus) before permitting employees to enter the workplace.  But, proceed with caution.  This of course assumes you would have access to sufficient testing to begin with, which is likely an issue.  Consistent with the ADA standard, employers should ensure that the tests are accurate and reliable.  For example, employers may review guidance from the U.S. Food and Drug Administration 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 wish to consider the incidence of false-positives or false-negatives associated with a particular test.  Accurate testing only reveals if the virus is currently present; a negative test does not mean the employee will not acquire the virus later.

CAN AN EMPLOYER ASK EMPLOYEES IF THEY HAVE UNDERLYING HEALTH CONDITIONS THAT MAY PLACE THEM AT GREATER RISK?

Not if they did not bring it up first.  If an employee brings up their underlying condition that necessitates a change to meet a medical need, the employer may ask questions or seek medical documentation to help decide if the individual has a disability and if there is a reasonable accommodation, barring undue hardship, that can be provided.

WHAT DO I DO IF AN EMPLOYEE WITH A DISABILITY NEEDS A RELATED ACCOMMODATION?  

The CDC identifies several medical conditions that might place individuals at higher risk of severe illness from COVID-19.  If an employee has such a condition and requests accommodation you should have an interactive process. The EEOC says you can discuss with the employee:

• How the disability creates a limitation;
• Medical documentation of a disability that is not obvious, including health records;
• How the requested accommodation will address the limitation;
• Whether another accommodation could solve the issue;
• How the requested accommodation enables the employee to continue performing the essential functions of the job

Some conditions may complicate use of protective equipment.  For example, Bob is allergic to latex.  Sally’s respiratory condition prohibits certain kinds of masks.  As an employer, you should have an interactive process to discuss any requests for accommodations and provide an alternative if feasible if it is not a true undue hardship to the operation of your business. If an employer knows the employee has one of these conditions but they do not request accommodation, no action is mandated by the ADA.

Prohibiting employees with underlying conditions from working at all is held to a much higher standard.  The ADA does not allow the employer to exclude the employee – or take any other adverse action – solely because the employee has a disability that the CDC identifies as potentially placing him or her at “higher risk for severe illness” if the employee gets COVID-19. 

Under the ADA, such action is not allowed unless the employee’s disability poses a “direct threat” to their health that cannot be eliminated or reduced by reasonable accommodation.  Again, this is a high standard to meet.  The EEOC says a direct threat assessment cannot be based solely on the condition being on the CDC’s list.  

The ADA regulation requires an employer to consider the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm.  The severity of the pandemic in a particular area and the employee’s own health (for example, is the employee’s disability well-controlled) might be considered.  Even if you think there is a direct threat an interactive accommodation discussion is still required.  Remember, the EEOC lists telework, leave or reassignment as possible accommodations.

WHAT TYPES OF ACCOMMODATIONS ARE THERE?

The EEOC provides these accommodation ideas:

• 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) or moving the work location (moving a person to the end of a production line rather than in the middle of it if that provides more social distancing).

PERSONAL PROTECTIVE EQUIPMENT 

We are all painfully aware of the acronym, PPE, not to be confused with PPP.  An employer may require employees to work in PPE and to observe infection control practices  like regular hand washing and social distancing.  

CAN EMPLOYEES REFUSE TO WORK?

If they can work and are not entitled to certain leave, probably not.  They can request an accommodation if they have an underlying condition as discussed above.  

OSHA touches upon dangerous conditions.  According to OSHA:  If the condition clearly presents a risk of death or serious physical harm, there is not sufficient time for OSHA to inspect, and, where possible, the employee has brought the condition to the attention of his or her employer, they may have a legal right to refuse to work in a situation in which they  would be exposed to the hazard. 

According to OSHA, an employee’s right to refuse to do a task is protected if all the following conditions are met:

• Where possible, they have asked the employer to eliminate the danger, and the employer failed to do so; and
• They refused to work in "good faith." This means that they must genuinely believe that an imminent danger exists; and
• A reasonable person would agree that there is a real danger of death or serious injury; and
• There isn't enough time, due to the urgency of the hazard, to get it corrected through regular enforcement channels, such as requesting an OSHA inspection.

OSHA drafted an Interim Enforcement Response Plan for Coronavirus Disease 2019 which can be found at:  https://www.osha.gov/memos/2020-04-13/interim-enforcement-response-plan-coronavirus-disease-2019-covid-19

Contact one of the attorneys at Hite, Fanning & Honeyman LLP for further assistance

Gaye Tibbets

316-269-0217

tibbets@hitefanning.com

Jon Newman

316-269-2014

Newman@hitefanning.com