COVID-19 and the workplace: Getting comfortable with the uncomfortable
Employers face challenges as they attempt to comply with new and frequently changing federal, state and local laws, regulations and guidance related to COVID-19, all of which are likely to continue evolving even after the development and availability of a vaccine and/or the enactment of liability shield legislation.
The COVID-19 pandemic has caused employers to get comfortable with the uncomfortable, and enter various realms previously considered taboo.
For example, prior to COVID-19, employers were drilled repeatedly not to ask employees health-related questions. However, employers today are not only encouraged but, in many circumstances, required to ask certain medical questions in order to meet their obligations to provide a safe workplace that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” 29 U.S.C. 654(a)(1).
Similarly, just a few months ago, the most basic rule of thumb was that employees should not be treated differently in the workplace based on their membership in a protected classification. Yet now it has become apparent that certain vulnerable populations—such as older adults, those with certain underlying medical conditions, and those who are pregnant—may face heightened risks, and employers understandably are motivated to consider how they can protect the health and safety of those populations.
These tensions, among others, are producing challenges for employers as they attempt to comply with new and frequently changing federal, state and local laws, regulations and guidance related to COVID-19, all of which are likely to continue evolving even after the development and availability of a vaccine and/or the enactment of liability shield legislation.
Disability-related inquiries/examinations
The Americans with Disabilities Act (ADA) generally limits an employer’s ability to make disability-related inquiries or require employees or job applicants to undergo medical examinations. After employment begins, for example, an employer cannot ask an employee disability-related questions or require an employee to undergo a medical examination unless it can be shown that the examination or inquiry is “job-related and consistent with business necessity.” 42 U.S.C. 12112(d)(4).
An examination of an employee may meet this standard when an employer reasonably believes, based on objective evidence, that an employee’s ability to perform essential job functions will be impaired by a medical condition; or an employee will pose a direct threat due to a medical condition. Given these restrictions, employers had, up until recently, become increasingly reluctant to request medical information from employees.
Much of that has changed in light of the ongoing COVID-19 pandemic. Now, in order to ensure they are maintaining a safe workplace, employers are often required to obtain certain medical information on a regular—sometimes daily—basis before they can permit an employee to physically enter the office.
Guidance from the Equal Employment Opportunity Commission (EEOC) has sought to help employers navigate this new minefield. The EEOC has declared the COVID-19 pandemic a “direct threat,” meaning “a significant risk of substantial harm would be posed by having someone with COVID-19, or symptoms of the disease, present in the workplace at the current time.”
As such, the EEOC has advised, during the current pandemic, employers are permitted to measure employees’ body temperature and may administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus. Subject to certain limitations, employers may also ask employees if they are experiencing symptoms of COVID-19, as such information is critical to protect others in the workplace.
That is not to say, however, that employers who take such measures can be confident in a COVID-free workplace. While the EEOC has advised employers to consult the US Centers for Disease Control (CDC), public health authorities and “other reputable medical sources for guidance on emerging symptoms associated with the disease,” much of the CDC’s list (which presently includes eleven symptoms) is indistinguishable from symptoms associated with the flu, common cold, or even seasonal allergies.
To further complicate matters, a significant number of infected employees may be asymptomatic. Given the novelty of the current circumstances and the fluid nature of the virus, even the most well-intentioned employer may be susceptible to claims from employees who believe that they have been singled out and/or contracted COVID-19 at work.
Anti-discrimination
Numerous federal and state laws prohibit employers from discriminating against employees or applicants on the basis of a variety of protected characteristics, including race, national origin, gender, pregnancy, disability and age. These laws include the ADA, Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Age Discrimination in Employment Act (ADEA). Until the pandemic, the baseline was fairly straightforward: treat all employees the same, regardless of their membership in a protected class. Amid the COVID-19 pandemic, however, employers have become increasingly concerned about their ability to protect the health of their employees (particularly those in vulnerable populations) without running afoul of anti-discrimination laws.
While COVID-19 has certainly impacted people of all ages, the CDC has noted that older adults are at increased risk for severe illness related to the virus. According to the CDC, “8 out of 10 COVID-19-related deaths reported in the United States have been among adults aged 65 years and older.” The CDC has also identified “pregnant people” as well as individuals with certain underlying medical conditions—such as cancer, chronic kidney disease and type 2 diabetes—as being at an increased risk for severe illness due to COVID-19.
Notwithstanding the increased risk to certain individuals, the EEOC has taken the position that, even if an employer is concerned that an employee’s health will be jeopardized by returning to the workplace, “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 [the employee] at ‘higher risk for severe illness’” due to COVID-19. According to the EEOC, such action is not allowed under the ADA unless the employee’s disability poses a “direct threat” to his or her health that cannot be eliminated or reduced by reasonable accommodation.
Moreover, the EEOC has stated that employers may not “involuntarily” exclude employees from the workplace due to pregnancy or based on their being aged 65 or older, even if the employer is acting for benevolent reasons such as protecting such individuals due to their higher risk for severe illness from COVID-19. Instead, federal guidance encourages employers to “explain that the employer is willing to consider on a case-by-case basis any requests from employees who have these or other medical conditions.”
At the same time, employers must continue to satisfy their obligation of providing a safe workplace for all employees, and are encouraged to remain particularly mindful of employees in vulnerable populations, and employees who live with others who may likewise be vulnerable. In this regard, the Occupational Safety and Health Administration has advised employers to “consider extending special accommodations to workers with household members at higher risk of severe illness.” Needless to say, navigating these obligations will prove challenging for even the most diligent and well-meaning employers.
Beyond the curve
Two potential long-term solutions frequently discussed in connection with the COVID-19 pandemic include vaccines and liability shield legislation. Neither of these potential solutions, however, is likely to immediately eliminate the tension between an employer’s conflicting obligations under the various laws discussed above.
Under the EEOC’s current pandemic guidance, even after a COVID-19 vaccine is developed, employers will not likely be permitted to mandate all of their employees to take the vaccine. Rather, they would need to consider accommodations for employees with a disability or sincere religious belief, practice or observance.
As for liability shield legislation, most iterations currently being proposed at the federal and state level would protect employers acting in good faith to comply with applicable public health guidelines from certain lawsuits. However, these bills (such as the federal “SAFE TO WORK Act” introduced by Republican senators on July 27, 2020) typically also provide that they shall not be construed to affect the applicability of any law that creates a cause of action for intentional discrimination.
Thus, while employers wait to see what, if any, relief will be provided by vaccines and/or liability shield legislation in the future, employers are strongly urged to continue to monitor developing standards and guidance, and consider proactive steps to mitigate potential exposure, including reviewing and fine-tuning certain policies, training materials, and compliance and investigation procedures, as well as reminding employees and supervisors of anti-discrimination and anti-retaliation obligations.
Even as we move beyond the COVID-19 curve, it is likely that the pandemic will have longer term impacts on the need for employers to acquire and make use of information (including health data) about their employees to protect health and safety of others. The pandemic may also result in the silver lining of greater employer investment in the health and well-being of employees as a way to build workforce resilience.
Brian S. Kaplan is Chair of the US Employment practice at DLA Piper in New York. Joseph D. Guarino is a partner at the firm, and Lisa M. Yennella-Granese is Of Counsel with the firm in its Short Hills office.
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