The Employer State Of Emergency
As an employer, there was no way we could have predicted 2020 would begin with a temporary shut down of nearly every business in the United States resulting in both new businesses and established businesses to close their doors forever.
The COVID-19 pandemic will go down in history as the 15 second knock-out. We as employers did not even get in a round before life as we knew it came to a screeching halt. Not only are we facing the direst of economic times since the great depression, we are also facing unprecedented legal issues that will long plague US employers.
New legislation has sprung up almost as fast as the virus itself, posing innumerable questions and concerns on what an employer should be doing, shouldn’t be doing, is doing wrong, or should have done.
At least the confusion isn’t just with us the employers. The Department of Labor is as confused as a blind mouse in a maze. Over the weekend it issued its fourth round of FAQs for the new legislation. Yes. Fourth.
To make matters worse, the EEOC released workplace guidelines on dealing with COVID-19 in the workplace. The problem is, there many employers who do not trust the EEOC. The EEOC has become a pain for employers who have tried to do the right thing and still receive charges and fines.
Legal experts have stated that the new EEOC guidelines do in fact protect an employer during a State of Emergency. Let’s look at the new guidelines:
Based on the guidance of the CDC and public health authorities as of March 2020, the COVID-19 pandemic meets the direct threat standard.
- During a pandemic, ADA-covered employers may ask such employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.
- Generally, measuring an employee’s body temperature is a medical examination. Because the CDC and state/local health authorities have acknowledged the 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.
- The CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace. The ADA does not interfere with employers following this advice.
- Fitness For Duty to return to work: Such inquiries are permitted under the ADA either because they would not be disability-related or, if the pandemic influenza were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees. As a practical matter, however, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus.
- An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job. This ADA rule applies whether or not the applicant has a disability.
- Any medical exams are permitted after an employer has made a conditional offer of employment. However, employers should be aware that some people with COVID-19 do not have a fever.
- According to current CDC guidance, an individual who has COVID-19 or symptoms associated with it should not be in the workplace.
Based on this guidance from the EEOC, your rights as an employer are protected. You should keep in mind that discrimination and harassment policies are still in place. Below are some HR tips to help make your State of Emergency less “litigious”:
- Always take employees to a private location (adhering to the “always have a witness with you rule”).
- Only ask questions directly related to the COVID-19 pandemic.
- If taking temperatures only do so with an infrared thermometer or forehead thermometer. No oral, ear, or underarm temps may be taken.
- Instead of using names for those who are COVID positive, let your staff know that a member of your team has tested positive. When doing so, rally support around the infected employee and ask everyone to do their part.
- Hostile Work Environment can come out of a diagnosis as fear causing us to do things we would not normally do. Reinforce your policy(ies) on a team environment and zero tolerance for harassment.
- As always, be a leader. Your team mimics your behavior and looks to you for support, guidance, and strength.
This pandemic will not last forever, but the legislation will likely be modified for the long-term. HR as well as legal representation is imperative. HR can assist in crisis planning so that in the future, you are prepared.