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  • 05/04/2020

    Tips To Help Businesses Prepare To Re-Open

    Client Alert










    Written by: Susan L. Swatski, Esq.

    As businesses are starting to re-open their doors, workers and employers need to prepare their workplaces for the new normal to try to keep everyone as healthy as possible in the new COVID-19 reality. These are challenging times to be sure and we’re here to help you navigate them by providing guidance on key legal issues to consider as you re-open your business.

    1.    Employer Screening of Employees for COVID-19

    The Equal Employment Opportunity Commission (EEOC) recently provided guidance that expressly permits employee screening and stating that such screening does not violate the Americans with Disabilities Act (ADA) provided any mandatory medical test is job-related and consistent with business necessity. In the case of COVID-19, the virus poses a direct threat to the health of others thereby satisfying the business necessity standard. 

    Temperature testing is the most common type of screening being performed by employers. Such screening must be conducted on a nondiscriminatory basis, meaning all employees must be tested. Test results should be retained as confidential medical records. The ADA requires that all medical information about a particular employee be stored separately from the employee's personnel file. An employer may store all medical information related to COVID-19 in existing medical files. This includes an employee's statement that she has the disease or suspects she has the disease, or the employer's notes or other documentation obtained by questioning an employee about symptoms. 

    The screening may not be broader than necessary to address the threat. Employers should not ask employees to disclose whether they have a compromised immune system or other chronic health conditions as these are improper disability-related inquiries under the ADA and New Jersey Law Against Discrimination.

    Employers should have a policy in place for employees who refuse to submit to screening. An employer may need to consider barring access to the workplace for an employee who refuses to cooperate. Consider having employees consent in writing to the screening and acknowledging that the screening is not a diagnostic test.

    Employers must pay employees for the time while they are waiting to be tested.

    An employer may disclose the name of an employee to a public health agency when it learns that the employee has COVID-19.

    2.    Undue Hardship in Response to a Request for an Accommodation

    The EEOC has clarified what constitutes an “undue Hardship” during the era of COVID-19 when responding to a request for a workplace accommodation for an individual with a disability. Specifically, the EEOC confirmed that the employer’s loss of income due to the pandemic is a relevant consideration, as well as, whether there is an expected date that current restrictions on an employer’s operations will be lifted. Employers must still weigh the cost of an accommodation against its current budget and engage in the interactive process with the employee requesting the accommodation. 

    Where an employee with a disability needs a related reasonable accommodation (e.g., non-latex gloves) or a religious accommodation (such as modified equipment due to religious garb), the employer should discuss the request and provide the modification or an alternative if feasible and not an undue hardship.

    Although many people feel significant stress due to the COVID-19 pandemic, employees with certain pre-existing mental health conditions (e.g. anxiety disorder), may have more difficulty handling the disruption to daily life that has accompanied the COVID-19 pandemic. As with any accommodation request, employers may: ask questions to determine whether the condition is a disability; discuss with the employee how the requested accommodation would assist her and enable her to keep working; explore alternative accommodations that may effectively meet her  needs; and request medical documentation if needed. 

    3.    Phasing in Returning to Work

    The White House Guidelines for Opening Up America Again outline a three-phase process to return workers to the worksite. The phases direct employers to not bring all workers back at the same time, but rather to do so in phases. The most important consideration in bringing workers back into the workplace is to not discriminate in the manner in which this is done. Have a written plan and follow it. The plan should identify the most critical employees who cannot work from home and bring those employees back first. Employers should also consider to what extent those employees must interact with the general public and any other increased risk of exposure to COVID-19. Employers must account for social distancing in the workplace and consider to what extent the business is able to provide/access protective equipment to keep workers returning to the workplace as safe as possible. This may include redesigning the workplace to erect physical barriers to reduce the potential for exposure.

    4.    Addressing Workplace Harassment Related to COVID-19

    Employers can help reduce the chance of harassment by explicitly communicating to the workforce that fear of the COVID-19 pandemic should not be misdirected against individuals because of a protected characteristic, including their national origin or race or other prohibited bases. Ensure that employees have someone outside of their chain of command to report a claim of harassment to.

    5.    Revising Employee Handbook Policies

    New workplace rules and policies require updating the Employee Handbook or creating addendums addressing:

    • the Families First Coronavirus Response Act’s expansion of the Family Medical Leave Act to provide emergency leave for workplaces with fewer than 500 employees and to provide 80 hours of emergency paid sick leave;
    • social distancing in the workplace;
    • temperature and health screening as a condition of employment;
    • required personal protective equipment;
    • requirements for teleworking;
    • cleaning and disinfecting personal work spaces; and
    • staying home when experiencing flu-like or COVID-19-associated symptoms.

    6.    Designating a Health and Safety Compliance Officer

    There are a lot of rules and regulations to keep on top of and people have a variety of opinions about whether or not they should be required to adhere to them. It is the employers’ responsibility to keep its workplace free from hazards, which may include an employee flouting those rules. Employers should consider designating a person to monitor guidance from the federal and state authorities to ensure that workplace policies remain current and that employees are kept abreast of their rights. 

    If you have any questions or if you require assistance to help your business navigate this challenging time, please contact the author of this Alert, Susan L. Swatski, Esq. for additional information or to discuss your specific employment-related circumstances.

    ©2020 Hill Wallack LLP. All rights reserved. Please contact Hill Wallack for permission to reprint. Notice: The purpose of this Client Alert is to identify select developments that may be of interest to readers. The information contained herein is abridged and summarized from various sources, accuracy and completeness of which cannot be assured. This Client Alert should not be construed as legal advice or opinion, and is not a substitute for the advice of counsel.