By Anthony Cammarata Jr.
While it may feel as if we have been dealing with the novel coronavirus pandemic for a long time now, developments in COVID-19 guidance and regulations pertaining to employers are still relatively new and unclear. There have been times during this pandemic where I have had to reluctantly provide my corporate clients with the typical lawyer answer: "It depends." Unfortunately the laws regarding COVID-19 and how they will be interpreted and applied are still relatively unsettled and continually evolving, and it will take some time before enough cases have worked their way through the system to give us a clearer picture of the landscape.That being said, at this point we can provide some basic guidance to employers on how they should handle certain situations. Below are several answers to frequently asked questions I have received from clients about the latest developments on the virus and its effects on the workplace:
1. What should I do if an employee appears to be sick or is otherwise showing symptoms of COVID-19 at work?
The Centers for Disease Control and Prevention ("CDC") states that employees who become ill or are showing symptoms of COVID-19 should leave the workplace. Because the Americans with Disabilities Act ("ADA") does not interfere with employers following this advice, the Equal Employment Opportunity Commission ("EEOC") permits employers to send home employees who have or are exhibiting symptoms of COVID-19. The CDC's interim guidance for businesses and employers responding to COVID-19 can be found here: CDC Guidance.
2. Can I require an employee to provide a doctor's note certifying fitness for duty before the employee returns to work?
Yes. While the CDC advises not to require a doctor's note for an employee to return to work, such inquiries are permitted under the ADA and by the EEOC. 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 virus.
3. Can I require an employee to notify me if they have been exposed, have symptoms, and/or have tested positive for COVID-19?
Yes. Employers may require any employee who becomes ill at work with symptoms of COVID-19 to notify his/her supervisor. Employees who are suffering from symptoms should be directed to remain at home until they are symptom-free for at least 24 hours.While outside of work, if an employee begins experiencing symptoms, has been exposed to someone that is exhibiting symptoms, or has tested positive, employers can require that the employee notify the employer and not return to work until proper precautions are taken.
CDC guidance states that employees may have been "exposed" to COVID-19 if they have been in "close contact" with someone who is infected. The CDC defines "close contact" as being within six (6) feet of a person with COVID-19 for a period of fifteen (15) minutes or longer. Note, this is irrespective of whether the person with COVID-19 or the contact was wearing a mask or whether the contact was wearing respiratory personal protective equipment (PPE).
4. Where can I find guidance on steps to take to protect my employees in the workplace?
The Occupational Safety and Health Administration ("OSHA") partnered with the U.S. Department of Labor to publish a Guidance on Preparing Workplaces for COVID-19. The guidance is intended for planning purposes to help employers identify risk levels in workplace settings and to determine any appropriate control measures to implement. The OSHA guidance can be found here: OSHA Guidance.
Additional guidance from the Georgia Department of Public Health can be found here: guidance from the Georgia Department of Public Health can be found here: GA DPH Guidance.
5. Can I take an employee's temperature to determine whether they might be infected?
Yes. The EEOC confirmed that measuring employees' body temperatures is permissible given the current circumstances. While the ADA places restrictions on the inquiries that an employer can make into an employee's medical status, and the EEOC considers taking an employee's temperature to be a "medical examination" under the ADA, the federal agency recognizes the need for this action now because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions.
Note: If your company does business in the State of California (e.g., if you have one or more locations, employees, customers, suppliers, etc. in the state), and your business is subject to the California Consumer Privacy Act ("CCPA"), then you must provide employees a CCPA-compliant notice prior to or at the same time as your collection of this information.
6. Can I require an employee to get tested for COVID-19?
Yes, but only certain tests. EEOC guidance expressly states that employers can require employees to participate in COVID-19 viral testing before they are allowed to enter the workplace, even if they do not exhibit symptoms of the virus. However, it is important to distinguish between viral tests that determine if a person is actively infected with COVID-19 and antibody or serology tests which determine if a person was ever infected with COVID-19, even if they are asymptomatic and built up antibodies to the disease.
According to EEOC guidance released on June 17th, an antibody test constitutes a medical examination under the ADA. An antibody test at this time does not meet the ADA's "job related and consistent with business necessity" standard for medical examinations or inquiries for current employees. Therefore, while viral tests are deemed permissible, requiring antibody testing is not allowed under the ADA.
7. Can/should I disclose an employee's actual or probable COVID-19 diagnosis to other employees?
According to the CDC and EEOC, employers should inform employees of a potential workplace exposure, but only to the extent necessary to adequately inform them of the potential exposure, while maintaining confidentiality under the ADA. This means that employers should not reveal or disclose the infected individual's name or other identifying information unless otherwise explicitly directed to by applicable public health authorities.
Employers may also communicate to non-exposed employees and other non-employees (e.g., customers and vendors) generally that there has been a potential COVID-19 exposure, so long as no additional identifying information is shared.
8. Can I require employees to receive a COVID vaccination once it is developed?
Encouraging reports from President Trump and his administration indicate that the development of a COVID vaccine is progressing quickly, with hopes that a vaccine will receive approval and become commercially available as early as the end of this year. Of course, with a vaccine coming in the near future, many are questioning whether employers can mandate vaccination as a condition of employment.
Private employers likely have the legal right to require employees to obtain a COVID vaccine as a condition of employment. For years, many employers in high-risk workplaces (e.g., hospitals and nursing homes) have required their employees to obtain an annual flu vaccine. The same may be true in this context, absent specific legislation being enacted to preclude employers from mandating COVID vaccination.
That being said, employers may also have a legal duty under the ADA to allow certain employees to opt out of the vaccine. If an employee requests an accommodation from his/her employer's COVID vaccine mandate, the employer will need to determine whether the accommodation is a reasonable one and whether it imposes an undue burden on operations and on the health and safety of coworkers. As with all ADA accommodation requests, employers will need to carefully consider the facts on a case-by-case basis.
While the legal landscape suggests that employer-mandated COVID vaccination would likely be permissible, whether an employer should mandate the vaccination is a different question entirely. Implementing a mandatory vaccine program would require employers to devote considerable time and resources into the program and risk alienating employees who have legitimate concerns about the unknown side effects of a vaccine that has been rushed into the marketplace.
In addition to dealing with the aforementioned accommodation requests, employers need to consider the potential liabilities that arise from mandating vaccinations. For example, what if an employee has a severe reaction to a mandated vaccination? In such an event, it is not farfetched to believe that an employer who required the vaccine could be named as a defendant in an ensuing lawsuit.
Employers will need to conduct a cost-benefit analysis in making such a decision. For some, a high-risk customer base or workplace (e.g., nursing homes) may require vaccine mandates to minimize the risk of a COVID outbreak and reduce employer liability. For other employers, the risks may outweigh the benefits, especially in the first few months after a vaccine is released when potential side effects may remain unknown.
As the law continues to develop in these areas, it is more important now than ever to engage trusted legal professionals to provide ongoing advice regarding your obligations and rights as an employer. We encourage all employers to seek such assistance in sufficiently planning for the futures of their workforces. We also strongly urge employers to amend their employee handbooks with a comprehensive Infectious and Communicable Disease Policy. The attorneys at Flint, Connolly & Walker, LLP are dedicated to keeping business clients up-to-date on the major changes in labor and employment law coming out of the pandemic.