Companies reopening their offices and facilities will be collecting sensitive personal and health information about their employees (as well as about customers, vendors, and other visitors) to track COVID-19 symptoms. Although the Americans with Disabilities Act (ADA) typically places strict limits on the collection, use, and disclosure of health information about employees, the ongoing pandemic has prompted the Equal Employment Opportunity Commission and Centers for Disease Control and Prevention to permit the widespread gathering of health information in the workplace in an effort to stem the spread of the coronavirus.
According to the Society for Human Resources (“SHRM”), child care shortages and concerns are complicating a return to the workplace for many parents as the coronavirus continues to spread and options remain unclear for schools, camps and day cares. There are no easy solutions on the horizon for these parents or the companies that employ them. Parents of younger children in particular are more stressed and are being torn in different directions. Single parents, predominantly women, are even more severely impacted. Continue Reading The Daycare Dilemma: Employers and Employees Alike Challenged with Summer Camp Closures and the Uncertainty of the Next School Year
While employers may require testing for COVID-19 before employees return to work, the Equal Employment Opportunity Commission (EEOC) has confirmed that employers are prohibited from requiring antibody testing before allowing employees back into the workplace.
The Americans With Disabilities Act (ADA) allows employers to inquire into an employee’s disability and conduct mandatory medical tests of employees if “job related and consistent with business necessity.” The EEOC earlier confirmed that employers could choose to conduct COVID-19 testing of employees before permitting them to enter the workplace to determine if any of them have the coronavirus. In doing so, the EEOC explained that the test for coronavirus meets this ADA standard because an employee with COVID-19 would pose a direct threat to the health of others in the workplace. Similarly, employers may take the temperatures of employees before entering the workplace and exclude employees with COVID-19 or with symptoms associated with COVID-19 from entering the workplace due to the direct threat to the health or safety of others.
In its new A.7 guidance issued on June 17, the EEOC explained that antibody testing is different and does not meet the ADA’s “job related and consistent with business necessity” standard for medical tests or inquiries into information from employees. Relying on the Interim Guidelines from the Center for Disease Control (CDC), the EEOC adopted the CDC’s position that antibody “testing should not be used to determine immune status in individuals until the presence, durability, and duration of immunity is established.” Specifically, the CDC notes that antibody testing should not be used to:
- make decisions about returning persons to the workplace; or
- make decisions about grouping persons residing in or being admitted to congregate settings, such as schools, dormitories, or correctional facilities.
In its new guidance, the EEOC explained that it will continue to monitor the recommendations of the CDC and update its guidance accordingly. At this time, requiring antibody testing of employees before allowing them to return to the workplace is not allowed under the ADA. Until it is found that antibody testing is more accurate, understood, and could prevent the spread of the coronavirus, this guidance is likely to remain unchanged. Employers may, however, continue to test for COVID-19 and inquire into medical symptoms associated with COVID-19. As the EEOC has advised, those employers who do require this testing should ensure that the tests used for detecting COVID-19 are accurate and reliable and administered consistently.
As states begin to reopen their economies following months of shutdowns related to the COVID-19 pandemic, many employers are wrestling with challenging questions about how to bring their employees back in a safe and responsible manner.
New guidance from the Equal Employment Opportunity Commission (“EEOC”) provides some insight about what employers can and cannot do in connection with bringing certain vulnerable employees back to the workplace.
Soon the name Bostock will join those of Brown (v. Board of Education of Topeka, Kansas), Miranda (v. Arizona) and Obergefell (v. Hodges) in the annals of US Supreme Court history as the Court on June 15, 2020 issued its decision in the case of Bostock v. Clayton County, Georgia. The court decided in an opinion incorporating a trio of cases asking whether Title VII prohibits employment discrimination based on lesbian, gay, bisexual and transgender (LGBT) status. The Court concluded in a 6-3 opinion that an employer who fires a worker for being gay or transgender violates Title VII of the Civil Rights Act of 1964.
On May 19, 2020 OSHA issued an Enforcement Memorandum providing updated interim guidance to Compliance Safety and Health Officers (CSHOs) regarding enforcing the requirements for recording of COVID-19 as an occupational illnesses. Continue Reading OSHA Outlines Reporting Requirements for COVID-19 Incidents in the Workplace
In mid-March the work world as we know it changed due to the COVID-19 emergency orders. Many employers were forced to make immediate decisions about things previously unknown to them like furloughs, wage reductions, providing Personal Protective Equipment, applying for loans to cover payroll, and ensuring the safety of essential workers. Now the focus is on return to work plans and providing a safe place for employees, customers, and vendors in order to return to something as close as possible to “business as usual.”
On May 18, 2020, Massachusetts Governor Charlie Baker announced, a 4-Phase reopening process for Massachusetts businesses, both essential and non-essential.
As more businesses begin to re-open their doors and consider ways to provide a safe environment for their employees in light of the COVID-19 pandemic, employers may find that many of their employees are facing new and unprecedented challenges. These challenges frequently come at a cost. In order to provide employees with assistance, and encourage them to return to work despite these additional costs, employers may want to consider offering tax-free “qualified disaster relief payments” to employees.
Last week, Massachusetts Governor, Charlie Baker announced a four-phase reopening strategy for the Commonwealth. Each of the four phases (called “Start,” “Cautious,” “Vigilant,” and “New Normal”) will see gradual reopening of additional industries with lessening restrictions as warranted by data on testing, new cases, and deaths attributable to COVID-19.