The COVID-19 Pandemic has forced employers to face public health, customer service, workforce, travel, and business disruptions in constantly evolving circumstances. Many of the decisions that employers must make on-the-fly create unintended consequences with serious labor and employment law liability issues. The Business Law Blog will address these issues in a series of three blog posts to expose the subtle legal issues obscured by gut-wrenching decisions made to protect healthy workers from exposure to co-workers who may have the virus, to serve customers without putting them at risk to COVID-19 infection, and to cut losses as economic activity grinds to a near halt because of governmentally mandated social distancing and quarantining policies by cutting the jobs of some workers to save the jobs of other employees. This post addresses employment discrimination and leave law-related issues raised by the COVID-19 pandemic. A second post will examine workplace safety issues unique to workforces exposed to the COVID-19 pandemic. The third post will explore issues regarding mass lay-offs and plant closings under the Worker Adjustment and Retraining Act, the duty to bargain over such decisions and the protected, concerted activities of workers expressing their concerns about COVID-19 related issues under the Labor Management Relations Act.
Employers Now Have More Leeway to Inquire about Coronavirus Symptoms and to Require Employees to Have Their Temperatures Taken than the Disability Discrimination Laws Typically Allow.
The World Health Organization’s declaration of the COVID-19 Pandemic on March 11, 2020 has given employers greater latitude to question employees about their health status related to the coronavirus. The Equal Employment Opportunity Commission (“EEOC”) initially directed employers to its Pandemic Preparedness in the Workplace and the Americans with Disabilities Act guidance (https://www.eeoc.gov/facts/pandemic_flu.html#secB ) (“Pandemic Preparedness”) that it originally issued in 2009 in response to the H1N1 flu pandemic. On March 18, 2020, the EEOC provided more specific guidance to employers in view of the COVID-19 pandemic. Generally, the Americans with Disabilities Act (“ADA”) covers employers with, at least, 15 employees. Most states have similar laws that reach smaller employers—for example, six or more employees for the Missouri Human Rights Act and one or more employees for the Illinois Human Rights Act. Typically, the state disability discrimination laws interpret their obligations consistently with the ADA. Specifically, the EEOC’s new guidance answers the following questions:
How much information may an employer require an employee to disclose when calling in sick to protect its workforce during the COVID-19 pandemic?
Employers may ask such employees whether they have any of the symptoms of the coronavirus—such as fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illness as a confidential medical record in accordance with the ADA’s requirements.
When may an employer take the temperature of an employee?
Generally, the ADA strictly limits an employer’s use of medical examinations, which includes the measuring an employee’s body temperature. Because the Center for Disease Control and Prevention (“CDC”) and both state and local health authorities have acknowledged person-to-person transmission of COVID-19 and issued attendant precautions, employers may measure employees’ body temperature. Persons infected by COVID-19, in some cases, have no fever.
May employers exclude employees with COVID-19 symptoms from their workplaces?
Yes, the CDC has issued guidance for businesses and employers (https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term= ). They direct employees with COVID-19 symptoms to stay home from work. Similarly, the CDC’s guidance instructs employers to separate employees with such symptoms from other workers and to send them home. The ADA permits employers to follow this advice.
May employers require employees to submit a fitness for duty certification from a heath care provider before they return-to-work after absences because of their COVID-19 related illness?
Yes. The ADA allows medical inquiries of this sort either because they pose no disability-related questions or, in the case of severe pandemic influenza, the ADA’s standards for an employer’s disability related inquiries of employees would allow them. As a practical matter, however, health care providers would likely prioritize their providing care to sick patients during a pandemic and refuse to provide fitness for duty certifications. 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 pandemic virus.
If an employer is hiring, may it screen applicants for symptoms of COVID-19?
Yes. An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, if it does so for all entering employees in the same type of job. This ADA rule applies whether or not the applicant has a disability.
May an employer take an applicant’s temperature as part of a post-offer, pre-employment medical exam?
Yes. After an employer makes a conditional employment offer, it may require applicants to submit to medical exams.
May an employer delay the start date of an applicant who has COVID-19 or symptoms associated with it?
Yes. The deferral of the start date of a new employee with COVID-19 symptoms would implement the CDC’s guidance to exclude symptomatic workers from the workplace.
May an employer withdraw a job offer when it needs the applicant to start immediately but the individual has COVID-19 or symptoms of it?
Based on current CDC guidance, this individual cannot safely enter the workplace, and therefore the employer may withdraw the job offer.
The EEOC’s new COVID-19 specific guidance gives employers more leeway than they had under its Pandemic Preparedness guidance. Specifically, the EEOC has recognized an employer’s right to require workers to submit to limited medical examinations in the form of the employer’s taking the temperature of job applicants and employees. Employers, of course, must limit such temperature taking of employees to circumstances where they have symptoms of COVID-19 infections or have told employers of their recent exposure to persons with such infections. In other words, if an employee trips and scrapes his knee, the ADA still prohibits an employer from taking the employee’s temperature in the course of providing first aid to him.
Aside from ADA Related Issues, Covid-19 May Raise National Origin Discrimination Issues in Some Workplaces.
Employers must avoid any discrimination against employees because of their national origin. The CDC made the following observation recently:
Do not show prejudice to people of Asian descent, because of fear of this new virus. Do not assume that someone of Asian descent is more likely to have COVID-19.
Employers must take seriously any concerns expressed by workers of Asian descent about either their disparate treatment or their being subjected to workplace harassment because of their national origin. Employers must counteract any efforts of employees of different ethnicities either avoiding or disparaging employees with Asian ethnicities because of their national origin.
For example, assume Harry, an employee of European descent, asks an employer to reassign him from a work station next to Sam, an employee of Chinese descent. Harry explains his request on the basis that Sam told Harry that relatives from mainland China visited Sam in the fall of 2020. Harry now fears that Sam’s relatives exposed him to the coronavirus. Sam has no symptoms of COVID-19. Harry tells the employer that he wants to move his work station in an abundance of caution, because it’s better to be safe than sorry. The employer must refuse Harry’s request. The CDC has estimated the incubation period for COVID-19 to range between two and fourteen days. Sam has no symptoms and his relatives from China visited him more than three months ago. On the other hand, if an employee, regardless of his race or national origin, recently either visited either China or Italy or had visitors from either mainland China or Italy and the employee has COVID-19 symptoms, the employer would have legitimate reason to remove that employee from the workplace temporarily.
The Families First Coronavirus Response Act Grants Temporary Paid Sick Leaves for Coronavirus Related Illnesses, Preventive Care, and Child Care Needs.
Congress enacted and the President signed the Families First Coronavirus Response Act (“Act”) on March 18, 2020 (https://www.congress.gov/bill/116th-congress/house-bill/6201/text ). It provides paid leaves of absences during a public health emergency related to COVID-19 in calendar year 2020 to eligible workers—those employed by an employer for at least 30 days. Such employees must need leaves because of COVID-19 personal illnesses, family member illnesses, school closings, or the loss of child care services.
This law gives two weeks of paid sick leave to qualified workers if they are ill, quarantined, or seeking diagnosis or preventive care for coronavirus, or if they are caring for sick family members. Full-time employees receive 80 hours of paid leave at their regular pay rate, subject to a daily maximum of $511 or a maximum total of $5,110 over a two-week period. Part-time employees collect prorated paid time on the basis of their total number of regularly scheduled hours of work at their regular pay rate for a maximum of two weeks.
The Act also allows a maximum of 12 weeks of leave (with the first two weeks unpaid and up to 10 additional weeks with pay) to workers to care for sons or daughters whose elementary or secondary schools are closed or whose child care provider is unavailable because of coronavirus. The law caps paid parental leaves at the higher of either two-thirds of the employee’s regular pay rate for her or his regularly scheduled hours weekly or a maximum of $200 daily. It further limits the overall maximum of paid leave per eligible employee to a total of $10,000. The Act takes effect on April 2, 2020 and expires on December 31, 2020.
The Act further directs the Secretary of Labor to issue regulations interpreting its leave obligations for employers. It further authorizes the Department of Labor to exempt employers that employ fewer than 50 employees from its paid leave obligations. To qualify for an exemption from the Act, the Department must find that the imposition of the law’s paid leave obligations would jeopardize the viability of the employer’s business as a going concern. The Act’s text, however, omits any standards by which the Department will determine whether its paid leave obligations would jeopardize a business’ viability. Similarly, it also lacks any procedures for an employer to follow to obtain an exemption. So far, the Department has issued no word as to by when it will issue any regulations that interpret the Act’s paid leave provisions.
The Act gives employers a credit against their payroll taxes for all amounts paid to employees for paid leave time. If the amount of leave time paid because of the Act in a calendar quarter exceeds the employer’s payroll tax liability for the same quarter, then the employer receives a tax credit equal to the difference. The Act requires the Department of the Treasury to refund such excess credits by the end of the next calendar quarter. In addition, the law allows employers to include amounts that they pay to provide health plan coverage to an employee on one of the Act’s paid leaves to the amount of the payroll tax credit that the employer claims.
At best, a blog post can only highlight how the law regulates certain aspects of employer decision-making related to the COVID-19 pandemic. Employers making these decisions should discuss them in advance with their labor and employment law counsel for specific legal advice. For more information about the COVID-19 and employment discrimination and paid leave laws, please contact Gerry Richardson, (314) 552-0453, email@example.com. The next Blog for Business Law COVID-19 post will address workplace safety issues.