As we all begin to return to the workplace, employers have many questions. Remember, being “open” does not mean that the pandemic has ended. Federal and state organizations like the Centers for Disease Control and Prevention (CDC) and the Oregon Health Authority (OHA) have promulgated various guidelines that are helpful and important resources.
This alert relies on those resources and answers common questions to assist employers in bringing their employees back-to-work, with links to relevant government guidance.
1. How do we decide when to reopen?
The CDC released guidance on May 8, 2020, [https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html]
to assist employers in making decisions on when to reopen. In addition, as outlined by Governor Brown, Oregon employers may only reopen if certain safety precautions are in place [https://govstatus.egov.com/or-covid-19
- Promoting healthy hygiene practices (e.g., hand washing, sanitizing); and
- Intensifying cleaning, and disinfection (e.g., small groups, no large events).
The CDC released helpful guidance [https://www.cdc.gov/coronavirus/2019-ncov/community/reopen-guidance.html
] on June 11, 2020, for safeguarding public spaces, workplaces, businesses, schools, and homes; recent OSHA guidance is also instructive [https://www.osha.gov/Publications/OSHA4045.pdf
] and for schools in Oregon, the directive from OHA should be consulted. [https://www.oregon.gov/ode/students-and-family/healthsafety/Documents/Ready%20Schools%20Safe%20Learners%202020-21%20Guidance.pdf
Important steps to consider include:
- Canceling non-essential travel, and encouraging alternative commuting and telework;
- Spacing out seating (more than 6 feet) and staggering gathering times;
- Implementing spatial changes in the physical workplace to permit social distancing to the extent feasible; with shared office arrangements, open floor work sites, or close common areas where employees are likely to congregate and interact, consider reconfiguring these spaces.
- Additional considerations for nonpermanent, spatial changes in the workplace prior to reopening include:
- Partitions between receptionists and others that may directly interact with employees;
- Separating employees who work in adjacent cubicle spaces;
- Removing every other chair in break areas and lunchrooms; and
- Adding partitions to tables where employees congregate during breaks.
- Requiring employees to walk in designated one-way lanes in hallways and corridors to avoid “head-on” pedestrian traffic;
- Consulting with landlords about converting communal restrooms to single-seat bathrooms to avoid close contact between users;
- Utilizing HVAC contractors to increase the number of air changes in the workplace;
- Requiring employees to bring food/snacks from home, or arranging for food trucks or other food delivery services to serve employees outside to separate employees during lunch breaks;
- Providing hand sanitizer stations outside each restroom and each door that is commonly touched or used;
- Upgrading teleconference equipment to allow for more teleconferences;
- Restricting use of any shared items and spaces; and
- Training staff in above safety actions.
The CDC also recommends that employers delay reopening until safeguards have been implemented for the ongoing monitoring of employees, including:
- Encouraging employees who are sick to stay home;
- Establishing routine, daily employee health checks;
- Monitoring absenteeism and having flexible time off policies;
- Having an action plan if an employee gets COVID-19;
- Creating and testing emergency communication channels for employees;
- Establishing communication with state and local health authorities; and
- Discouraging sick visitors from entering the workplace to ensure employees remain safe.
And don’t forget face coverings. The Oregon Health Authority (OHA) released this notice on June 22, 2020 [https://sharedsystems.dhsoha.state.or.us/DHSForms/Served/le2351j.pdf
] clarifying Governor Brown’s face-covering order in public spaces, businesses, and transit for several counties in Oregon. Effective June 24, 2020 for Clackamas, Hood River, Lincoln, Marion, Multnomah, Polk and Washington counties, the order requires face coverings for grocery stores, fitness-related organizations, pharmacies, public transit agencies and providers, personal services providers, restaurants, bars, breweries, brewpubs, wineries, tasting rooms and distilleries, retail stores, shopping centers and malls and ridesharing services. Phase Two counties must also require masks for indoor licensed swimming pools, licensed spa pool and sports court operators, indoor entertainment facility operators, indoor recreational sports operators for specified sports, and indoor venue operators. OHA also provided guidance, frequently asked questions, and a poster/notice for covered businesses to display.
2. Now that we are open, what should we do if an employee is diagnosed with, or tests positive for COVID-19?
Always check the current CDC guidelines [https://www.cdc.gov/coronavirus/2019-ncov/community/general-business-faq.html
3. May we administer temperature tests, COVID-19 tests, and antibody tests to employees before allowing them to enter the workplace?
- Isolate/quarantine employees confirmed to have COVID 19: The infected employee should remain at home until released by a physician or public health official. If a medical note releasing the employee is unavailable, follow the CDC guidelines on when an employee may discontinue self-isolation. Those guidelines contain specific requirements depending on whether the employee tested positive for COVID-19 and their specific symptoms, and required self-isolation timelines.
- Identify and isolate employees working near the diagnosed co-worker: The CDC suggests asking infected employees to identify all individuals who worked within six feet ("close proximity") for a prolonged period of time (the current CDC guidance states that “recommendations vary on the length of time of exposure, but 15 minutes of close exposure can be used as an operational definition”) with them from the 48-hour period before the onset of symptoms until the infected employee is cleared to discontinue self-isolation. Send employees who worked closely with the infected employee home for 14 days after their last exposure as defined under CDC guidance, to ensure the infection does not spread. While quarantined, those potentially exposed employees should self-monitor for symptoms (check temperature twice a day, watch for fever, cough, or shortness of breath), avoid contact with high-risk individuals, and follow CDC guidance if symptoms develop.
- Clean and disinfect: After a confirmed COVID-19 case, follow the CDC guidelines for cleaning and disinfecting the workplace, including areas (e.g., offices, bathrooms, and common areas) used by the ill person, focusing especially on frequently touched surfaces. Consider using OSHA’s Hazard Communication Standard safety protocol.
- Notify employees: Following a confirmed COVID-19 case, and as recommended by the CDC, notify all employees who work in the location or area where the employee works of the situation, without revealing any confidential medical information such as the name of the employee, unless the employee has signed an authorization to disclose their diagnosis. Inform employees of the actions taken, including requiring employees who worked in close proximity to the infected worker to go home. Let employees know about the sanitizing and cleaning efforts and remind them to seek medical attention if they experience symptoms. The failure to generally notify employees at the location of a confirmed case may be a violation of OSHA’s general duty clause, which requires all employers to provide employees with a safe work environment.
Yes and No. The Equal Employment Opportunity Commission's Technical Assistance Questions and Answers (Q&A) [https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws
] says employers may administer temperature checks, and COVID-19 tests (which detect the presence of the COVID-19 virus), but may not administer antibody tests. Remember that the ADA requires that any mandatory medical test of employees be “job-related and consistent with business necessity. “Applying that standard to the current circumstances with the COVID-19 pandemic, employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with a virus will pose a direct threat to the health of others. This means that employers may choose to administer COVID-19 testing and take the body temperature of employees (as well as other measures, such as requiring employees to stay home if they have symptoms, and requiring employees to provide a doctor’s note certifying fitness for duty) before they enter the workplace. (Q&A A.6, B.2) However, in light of the CDC‘s interim guidelines stating that antibody test results “should not be used to make decisions about returning persons to the workplace,” and antibody tests at this time do not meet the ADA’s “job-related inconsistent with business necessity” standard for medical examinations or inquiries for current employees, employers should not use these tests to screen employees. In other words, employers cannot require employees to take an antibody test as a condition of returning to work. (Q&A A.7) Remember to keep any medical information, including temperature and COVID-19 tests separate from an employee’s personnel file and limit access to this confidential information. (Q&A B.1)
4. What happens if an employee refuses to return to work because they think it is unsafe?
For employees who have no medical reason to refuse to return to work, employers should follow CDC and OSHA guidelines to establish that the workplace is safe, and that the employee is not in any “imminent" danger of harm (which means under Section 13A of OSHA, there is no threat of death or serious physical harm, or a reasonable expectation that toxic substances or other health hazards are present in the workplace in the near future). Employees have a right not to return to a workplace they deem carries such an "imminent danger". Currently, OSHA does not consider most workplaces, absent a COVID-19 outbreak, as presenting an imminent danger of harm. And of course, reporting a workplace that an employee believes in good faith does present an imminent or immediate danger, is protected from retaliation. [https://osha.oregon.gov/covid19/Pages/default.aspx
5. What should I do if an employee refuses to return to work because they are over the age of 65 and fear a higher risk for a severe case of COVID-19?
Although the CDC has explained that individuals 65 and over are at a higher risk for COVID-19, and has therefore encouraged employers to offer maximum flexibility for telework to this group, state and federal laws prohibit employers from excluding individuals from the workplace based on their age. Of course, if a worker aged 65 or older has an underlying medical condition that brings them under the protection of the ADA as an individual with a disability, they may request reasonable accommodations for the disability (as opposed to their age). Without such an underlying medical condition, advise the employee of safety and hygiene protocols being followed, and that return to work decisions are not based on age. (Q&A H.1)
6. What if an employee refuses to wear personal protective gear and engage in infection control practices like washing their hands?
Remember that pursuant to the EEOC, an employer may require employees to wear protective gear (e.g. masks and gloves) and observe infection control practices (e.g. regular handwashing and social distancing protocols). In addition, Governor Brown has encouraged social distancing and recently mandated facial coverings for certain Oregon counties and businesses. Of course, if an employee with a disability needs a related reasonable accommodation under the ADA (e.g., non-latex gloves, modified facemask), or a reasonable accommodation for their religion (such as modified equipment due to religious need) the EEOC and the Governor's Order mandate that the employer should discuss the request and provide the modification or an alternative if feasible, and not an undue hardship on the operation of the employer’s business. (Q&A G.2) and Order [https://sharedsystems.dhsoha.state.or.us/DHSForms/Served/le2288k.pdf
]. We recommend that employers start with education and rely on corrective action only if an employee persistently refuses to follow employer prescribed protocols.
7. Can I ban an employee who I believe is at a higher risk for severe illness to return back to work? What if they are pregnant?
Although the CDC identifies a number of medical conditions that may place individuals at “higher risk for severe illness” if they get COVID-19, the ADA does not allow an employer to exclude an employee or take any other adverse action, solely because the employee may have a medical condition that the CDC identifies as potentially placing them at higher risk if they get COVID-19. Under the ADA, such an action is not allowed unless the employee's disability poses a “direct threat” to the employee's health that cannot be eliminated or reduced by a reasonable accommodation. (Q&A G.4)
In addition, excluding a pregnant employee from the workplace because of general concerns for the employee will place the employer at risk for discrimination under Title VII of the Civil Rights Act and state law. Even if motivated by a benevolent concern, an employer may not single out workers on the basis of pregnancy for adverse employment action, including banning them from work, requiring involuntary leave, layoff or furlough. Employers may (and should) evaluate accommodating pregnancy-related disabilities, if requested. Even though pregnancy itself is not an ADA disability, if an employee requests a reasonable accommodation due to a pregnancy-related medical condition, under state and federal law employers must consider it under the usual interactive process/reasonable accommodation rules. (Q&A J.1, J.2)
8. Are employees entitled to reasonable accommodation under the ADA to avoid exposing a family member who is at higher risk of severe illness from COVID-19 due to an underlying medical condition?
The EEOC says "No". Although the ADA prohibits discrimination based on association with an individual with a disability, that protection is limited to disparate treatment or harassment claims. The ADA does not require accommodating an employee without a disability based on the disability-related needs of a family member or any other person with whom the employee is associated. For example, an employee without a disability is not entitled under the ADA to work from home as an accommodation in order to protect the family member with a disability from potential COVID-19 exposure. (Q&A D.13)
9. What should I do with a few employees who insist that they continue to work from home, even though we are bringing everyone back to work?
Although state and local authorities have encouraged employers to allow employees to telework whenever feasible, once the county is reopened and that encouragement is removed by authorities, an employer may refuse to allow an employee to work from home when the employer is recalling employees back to work, so long as the employee is not seeking telework as a reasonable accommodation under the ADA. Working from home may be an effective and reasonable accommodation if such telework is medically necessary due to a disabling condition and not simply a preference, and the employee can still perform the essential job functions while working from home (with or without other reasonable accommodations).
10. We are ramping back up, but an employee is asking for paid federal emergency leave during summer vacation for their kids because their summer camp is closed. Do I really have to provide this leave?
The US Department of Labor Families First Coronavirus Response Act (FFCRA): Question and Answer #93 addresses this situation [https://www.dol.gov/agencies/whd/pandemic/ffcra-questions
For employers with under 500 employees, federal emergency paid sick leave and emergency paid FMLA are available under certain conditions, including if an employee's child's school or place of care is closed for COVID-19-related reasons. (Under the Oregon sick leave, and the "sick child" rules of the Oregon Family Leave Act, such leave is also available for eligible employees). Such FFCRA leave is not available, however, if the school is closed for summer vacation, or any other reason that is not related to COVID-19. The employee could take this FFCRA leave, however, if the childcare or summer camp program that the child was enrolled for is closed or not available because of COVID-19. In order to receive the tax credit associated with this leave the IRS says employers must have a statement from the employee for a leave request based on a school closing or childcare provider unavailability that includes:
- The name and age of the child (or children) to be cared for;
- The name of the school that has closed (or place of care that is unavailable) because of COVID-19;
- A representation that no other person will be providing care for the child under the age of 14 during the period for which the employee is receiving family medical leave; and
- With respect to the employee's inability to work or telework because of a need to provide care for a child older than fourteen during daylight hours, a statement that special circumstances exist requiring the employee to provide care.
We will continue to add to these common Back to Work questions and answers. If you have additional questions or concerns, feel welcome to call a Bullard Law attorney for assistance.
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