Employment Law Considerations for Returning to the Workplace in a COVID-19 World
25 min read
Employers planning a return to the workplace must comply with a myriad of employment laws, regulations and guidance issued by public health authorities and other regulators. The following is a summary of certain portions of various return to work guidance issued by the Federal Center for Disease Control (CDC) (last updated in May 2020), Federal Equal Employment Opportunity Commission (EEOC) (last updated on September 8, 2020) and the Federal Occupational Safety and Health Administration (OSHA) (issued on June 18, 2020), but does not purport to explain all circumstances or nuances in such guidance. There is also additional guidance available including guidance regarding specific types of workplaces, such as a May 2020 CDC guidance for employers with workers in office buildings. Such additional guidance also may have further or different recommendations or requirements than those summarized in this Client Alert. State and local laws also may have additional or different recommendations or requirements. [Questions updated based on the EEOC’s September 8, 2020 guidance are marked with an asterisk.]
Establishing a Plan to Return to the Workplace
Q: What steps should employers take in reopening their workplaces?
A: OSHA’s new guidance sets forth a three-phased approach to reopening workplaces. For all phases of reopening, employers should (i) develop and implement policies and procedures that address preventing, monitoring for, and responding to any emergence or resurgence of COVID-19 in the workplace or community, and (ii) implement strategies for basic hygiene (e.g., hand hygiene; cleaning and disinfection), social distancing, identification and isolation of sick employees, workplace controls and flexibilities, and employee training that are appropriate for the particular phase.
- Phase 1: Employers should consider making telework available, when possible and feasible with business operations. Consider limiting the number of people in the workplace in order to maintain strict social distancing practices. Where feasible, accommodations (i.e., flexibilities based on individual needs) should be considered for workers at higher risk of severe illness, including elderly individuals and those with serious underlying health conditions. Employers should also consider extending special accommodations to workers with household members at higher risk of severe illness. Non-essential business travel should be limited.
- Phase 2: Employers continue to make telework available where possible, but non-essential business travel can resume. Limitations on the number of people in the workplace can be eased, but continue to maintain moderate to strict social distancing practices, depending on the type of business. Continue to accommodate vulnerable workers as identified above in Phase 1.
- Phase 3: Businesses resume unrestricted staffing of work sites.
Q: What should employers include in their plans for reopening workplaces?
A: The CDC’s interim guidance states that employers should implement and update as necessary a plan that (i) is specific to the workplace, (ii) identifies all areas and job tasks with potential exposure to COVID-19, and (iii) includes control measures to eliminate or reduce such exposure. The CDC guidelines suggest the following:
- Prevent and reduce transmission among employees, including actively encouraging sick employees to stay home, conducting daily in-person or virtual health checks, identifying where and how workers might be exposed to COVID-19 at work, separating sick employees from other employees, taking action if employee is suspected or confirmed to have COVID-19 infection, educating employees about steps they can take to protect themselves at work and at home and offering support to employees who take public transportation to work.
Maintain healthy business operations, including implementing and communicating flexible sick leave and supportive policies and practices, including policies to protect higher risk employees, assess the employer’s essential functions, determine how to continue operations if absenteeism spikes, and establishing policies and practices for social distancing.
Maintain a healthy work environment, including by improving the engineering controls using the building ventilation system, ensuring the safety of the building water system and devices after a prolonged shutdown, giving employees and visitors what they need to clean their hands and cover their coughs and sneezes, perform routine cleaning and also enhanced cleaning and disinfection after persons with confirmed or suspected COVID-19 have been in the workplace, limit travel and advise employees who must travel to take additional precautions and preparations, and minimizing risk to employees when planning meetings and gatherings.
OSHA’s return to work guidance provides the following guiding principles and examples to be used in formulating an employer’s plan/policies and procedures to reopen the workplace:
- Hazard assessment, to determine potential sources of exposure to COVID-19 at the workplace, including, for example a desktop assessment to maintain social distancing practices.
- Hygiene, including practices for hand hygiene, respiratory etiquette, and cleaning and disinfection.
- Social distancing, including, for example, limiting business occupancy, demarcating flooring in six-feet zones in areas where employees congregate, posting reminders to maintain at least six feet between one another, and posting directional signs in hallways.
- Identification and isolation of sick employees, including, for example, practices for employee self-monitoring or screening, and establishing a protocol for managing employees who become ill in the workplace, including isolating and excluding from the workplace any employees with COVID-19 symptoms.
- Return to work after illness or exposure, including, for example, by following CDC guidance for discontinuing self-isolation and returning to work after illness, or discontinuing self-quarantine and monitoring after exposure, and ensure that employees who have been exposed to someone with COVID-19 routinely monitor themselves, including for signs or symptoms of illness.
- Controls, including, for example, engineering controls (e.g., physical barriers/shields to separate employees, enhanced ventilation) and administrative controls (e.g., staggering work shifts, limiting breakroom capacity, practicing social distancing, replacing in-person meetings with video meetings, ensuring employees wear face masks), and providing or ensuring use of personal protective equipment (PPE) to the extent required.
- Workplace flexibilities, including, for example, evaluating existing policies concerning remote work and sick leave.
- Training, including on (i) the signs, symptoms and risk factors for COVID-19, (ii) where, how, and to what sources of COVID-19 employees might be exposed in the workplace, and (iii) how to prevent the spread of COVID-19 at the workplace.
- Anti-retaliation, including ensuring no retaliatory action against an employee for following guidelines or raising workplace safety concerns by, among other things, ensuring employees understand their rights and who to contact with questions or concerns and ensuring supervisors know the employer’s policies.
Disability-Related Inquiries and Medical Examinations for Employees Returning to the Workplace
Q: May an employer request information from returning employees about their health?*
A: During a pandemic, employers may ask employees if they have COVID-19 or are experiencing symptoms of the pandemic virus, and may ask if the employees have been tested for COVID-19. An employer may exclude those with COVID-19, or symptoms associated with COVID-19, from the workplace because, as the EEOC has stated, their presence would pose a direct threat to the health or safety of others. Such employees may include employees who work on-site, whether regularly or occasionally, who report feeling ill or who call in sick, or employees who have been absent from work. However, for those employees who are teleworking and are not physically interacting with coworkers or others (for example, customers), the employer would generally not be permitted to ask these questions.
For COVID-19, relevant symptoms include fever, chills, cough, shortness of breath, or sore throat. Employers should rely on the CDC, other public health authorities and reputable medical sources for guidance on emerging symptoms associated with COVID-19 to guide employers when choosing questions to ask employees. For example, the EEOC notes that additional symptoms beyond fever or cough may include new loss of smell or taste as well as gastrointestinal problems, such as nausea, diarrhea and vomiting. Employers may not make determinations of risk based on any characteristic protected by law, such as race or national origin. The CDC states that employers should consider conducting daily in-person or virtual health checks.
Q: May an employer take the body temperature of employees?
A: Generally, measuring an employee's body temperature is a medical examination. Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees’ body temperature. However, employers should be aware that some people with COVID-19 do not have a fever. The CDC recommends screening employees for fevers of more than 100.4 degrees Fahrenheit, but some states may recommend different thresholds.
Q: May an employer require returning employees to self-report about their health?
A: Yes, during a pandemic, employers may ask employees to self-report if they are experiencing COVID-19 symptoms or have been diagnosed with COVID-19. OSHA notes the following: “In many workplaces, temperature screening efforts are likely to be most beneficial when conducted at home by individual workers, with employers’ temperature screening plans relying on workers’ self-monitoring and staying home if they have a fever or other signs or symptoms of illness, rather than employers directly measuring temperatures after workers arrive at the work site. Consider implementing such programs in conjunction with sick leave policies that encourage sick workers, including those whose self-monitoring efforts reveal a fever or other signs or symptoms of illness, to stay at home.”
Q: May an employer administer a COVID-19 test (a test to detect the presence of the COVID-19 virus) before permitting employees to enter the workplace?*
A: Yes, during a pandemic, employers may take steps to determine if employers returning to the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others, including testing employees before permitting them to enter the workplace or periodically to determine if they pose a threat to others. Employers should ensure that the tests are accurate and reliable by, among other things, reviewing guidance from the CDC and other public health authorities. Employers also should note that testing only reveals if the virus is currently present and a negative test does not mean the employee will not acquire the virus later. Employers therefore should still implement other infection control practices, such as social distancing, regular handwashing and other measures, in the workplace to prevent transmission of COVID-19.
Q: May an employer administer a COVID-19 antibody test (a test to detect the presence of COVID-19 antibodies but not the COVID-19 virus) before permitting employees to enter the workplace?*
A: No, because the CDC’s interim guidelines state that antibody test results “should not be used to make decisions about returning persons to the workplace.”
Q: May an employer ask only one employee (as opposed to asking all employees) questions designed to determine if she or he has COVID-19, or require that this employee alone have her or his temperature taken or undergo other screening or testing?*
A: Yes, if the employer has a reasonable belief based on objective evidence that this person might have the disease. To satisfy this, it is important for the employer to consider why it wishes to take these actions regarding this particular employee, such as a display of COVID-19 symptoms. In addition, the ADA does not interfere with employers following recommendations by the CDC or other public health authorities regarding whether, when, and for whom testing or other screening is appropriate.
Q: May an employer require returning employees to provide a note from a doctor or other health care provider certifying fitness for duty?
A: Yes, employers may require employees who have been away from the workplace during a pandemic to provide doctor’s notes certifying their fitness to return to work. The EEOC cautions that health care professionals may be too busy during and immediately after a pandemic outbreak to provide such certifications and therefore employers may need to rely on local clinics to provide forms, stamps or emails to certify that the employees do not have the pandemic virus and can return to work.
Q: May an employer ask returning employees whether they have been in close contact with anyone who has been diagnosed with COVID-19 or is experiencing symptoms associated with COVID-19?*
A: Yes. The CDC describes "close contact" as being within 6 feet of a person with confirmed COVID-19 for at least 15 minutes or having direct and unprotected contact with infectious secretions of a COVID-19 case (e.g., being coughed or sneezed on by someone with COVID-19). However, employers should ask the question broadly with regard to "anyone" and should not ask explicit medical questions regarding family members because, pursuant to the federal Genetic Information Nondiscrimination Act (GINA), employers are prohibited from asking family-specific medical questions.
Q: May an employer request information from returning employees about the locations to which they have recently travelled?*
A: If the CDC or public health officials recommend that people who travelled to specified locations (even if the travel was personal) remain at home for several days until it is clear that they do not have pandemic flu symptoms, an employer may ask whether employees are returning from these locations (and, presumably, can require such employees to remain at home for the recommended period). An employer does not need to wait until the employee develops COVID-19 symptoms to ask questions about where the person has traveled.
Q: May an employer request employees to disclose if they are at a higher risk from COVID-19, even if they do not have any symptoms?
A: Before a pandemic, employers may not ask employees to disclose if they have compromised immune systems or chronic health conditions that the CDC says could make them more susceptible to flu complications. If a flu pandemic becomes more severe according to public health officials, employers may have sufficient evidence from public health advisories to reasonably conclude that employees will face a direct threat if they contract pandemic flu. If so, then only in this circumstance may employers make disability-related inquiries or require medical examinations of employees who do not have symptoms of the pandemic virus to identify those employees at higher risk.The employer must keep this information confidential, even if voluntarily disclosed by the employee (without a disability-related inquiry) and can ask the employee to describe the type of assistance the employee thinks he or she may need (e.g., telecommute or leave for a medical appointment).
Q: May an employer ask if screen job applicants for symptoms of COVID-19?
A: Yes, after making a conditional job offer, as long as it does so for all entering employees in the same type of job.
Q: May an employer screen job applicants for symptoms of COVID-19?
A: Yes, after making a conditional job offer, as long as it does so for all entering employees in the same type of job.
Q: What steps should an employer take in connection with in-person health screening?
A: Employers should provide notification to employees as to how the health information will be used, including to whom information regarding symptoms or a positive test result may be communicated (e.g., to Human Resources), and should consider whether to obtain a written authorization from employees. Employers should make employee health screenings as private as possible to prevent stigma and discrimination in the workplace. Employers should also be mindful that time spent by hourly, non-exempt employees waiting in line for or participating in in-person health screenings may be compensable time.
Q: What should an employer do if an employee entering the workplace requests an alternative method of screening due to a medical condition or religious need?
A: Employers should consider such requests as a request for a reasonable accommodation under applicable law. This might involve, among other things, the need to engage in an interactive process with the employee as to whether an accommodation is available.
Q: What may an employer do if an employee refuses to permit the employer to take his or her temperature or refuses to answer questions about whether he or she has COVID-19, has symptoms associated with COVID-19, or has been tested for COVID-19?*
A: Employers are generally allowed to bar an employee from physical presence in the workplace if he or she refuses to have his or her temperature taken or refuses to answer questions about whether he or she has COVID-19, has symptoms associated with COVID-19, or has been tested for COVID-19. However, the employer should try to engage with the employee as to why he or she is refusing to take his or her temperature or to respond to the questions, because concerns (such as regarding confidentiality of medical information or reasonable accommodations with respect to screenings) may be alleviated as the employee learns more from the employer or is reassured.
Confidentiality of Medical Information
Q: Must an employer maintain as confidential any information obtained from an employee regarding his or her medical condition, such as through questions about symptoms, taking body temperature, administering a COVID-19 test or through review of a doctor’s note?*
A: Yes, employers must maintain all information about employee illness as a confidential medical record (including, if an employee is teleworking or on leave due to COVID-19 illness, keeping confidential the reason as to why such employee is teleworking or on leave). Such information must be stored separately from an employee’s regular personnel files. Such information includes, but is not limited to, a statement by the employee that he or she has the COVID-19 virus or any other information obtained from questioning the employee or voluntarily disclosed by the employee without any inquiry from the employer. The employer may maintain a log of the results of the daily temperatures taken of employees, but must maintain the confidentiality of this information and may be required to maintain such logs for the duration of each worker’s employment plus 30 years. Employers may, however, disclose the name of an employee to a public health agency when it learns that the employee has COVID-19 (and managers should report such information to appropriate employer officials so that they can take actions consistent with guidance from the CDC and other public health authorities). Employers also should take steps to ensure that the results of any in-person temperature screening are not seen by or communicated to other employees.
Q: May a temporary staffing agency or a contractor that places an employee in an employer’s workplace notify the employer if it learns the employee has COVID-19?
A: Yes, the staffing agency or contractor may notify the employer and disclose the name of the employee, because the employer may need to determine if this employee had contact with anyone in the workplace.
Requiring Employees to Stay Home or Leave the Workplace
Q: May employers require employees to stay home if they have COVID-19 symptoms?
A: Yes, employers may send employees home if they display symptoms of COVID-19, based on the fact that guidance from the CDC recommends that employees who become ill with symptoms of COVID-19 should leave the workplace.
Q: May employers require employees to stay home if they have been in close contact with anyone who has COVID-19 or COVID-19 symptoms?
A: Yes, employers may send employees home if they have had close contact with someone who has COVID-19 or symptoms of COVID-19, including if they are caring for a family member with COVID-19 at home. The employee should be required to remain at home for the period of time recommended by the CDC (14 days after their last contact with the person who is sick or 14 days after the person who is sick meets the CDC criteria to end home isolation. The employee should also be told to contact their doctor or other health care provider if they develop COVID-19 symptoms.
Q: May employers require employees to stay home if they have recently travelled to specified locations?*
A: If the CDC or public health officials recommend that people who travelled to specified locations (even if the travel was personal) remain at home for several days until it is clear that they do not have pandemic flu symptoms, an employer may ask whether employees are returning from these locations and, presumably, can require such employees to remain at home for the recommended period. An employer does not need to wait until the employee develops COVID-19 symptoms to ask questions about where the person has traveled.
Q: May employers require individuals who are at a higher risk from COVID-19—for example, the CDC has identified individuals who are 65 years or older or who are pregnant as higher risk—stay home during the pandemic situation?
A: No, an employer cannot require an employee to stay home or otherwise require changes to the employee’s job duties solely because the employee has a disability or other condition that the CDC identifies as potentially placing him or her “at higher risk for severe illness” if he gets COVID-19. Employers would have to conduct a “direct threat analysis” to determine if an at-risk worker’s own health is imperiled by having them return, as well as “an individualized assessment” to figure out if there is a reasonable accommodation that can mitigate the risk. An employer may choose, however, to allow telework or other accommodations to these employees, if requested by such employees.
Employer Protocols for COVID-19 Results or Symptoms
Q: What should an employer do if an employee in the workplace is diagnosed with COVID-19?
A: Employees with COVID-19 should not be permitted to return to the workplace until permitted by a doctor or other health care provider. The employer should (i) inform employees who have been in close contact with this individual that they may have had exposure in the workplace to an individual with COVID-19 but cannot disclose the identity of the employee who has been diagnosed with COVID-19, (ii) should send the employee home and require that he or she self-quarantine for the period suggested by the CDC, and (iii) clean and disinfect all areas used by the employee.
Although employers can require the employee to provide a fitness-for-duty note from a doctor or other health care provider before returning to work, the CDC, OSHA and the EEOC recommend that employers not do so given that doctors and other health care providers will be very busy during this pandemic. The CDC suggests that employees who had or think they had COVID-19 can be with others after (A) three days (72 hours) with no fever (without the use of fever-reducing medications), respiratory symptoms (coughing, shortness of breath) have improved, and either 10 days since symptoms first appeared or employee received a negative COVID-19 test, or (B) if the employee did not have symptoms, either 10 days after having been tested or a negative COVID-19 test. Persons who have conditions that might weaken their immune systems should observe self-isolation for longer periods of time.
With respect to cleaning and disinfection, the CDC recommends that (a) if it has been less than seven days since the sick employee has been in the workplace, the employer should close off any areas used for prolonged periods of time by the sick person, wait 24 hours before cleaning and disinfecting to minimize potential for exposure and open outside doors and windows during this period to increase air circulation, and (b) if it has been more than seven days since the sick employee has been in the workplace, no additional cleaning and disinfection is needed.
Q: What should an employer do if an employee experiences COVID-19 symptoms while in the workplace?
A: Employees with COVID-19 symptoms should be sent home immediately and, if they are unable to leave immediately, they should be isolated while awaiting transportation from the workplace. Based on CDC guidance, the employee should follow the same guideline stated above for employees who had or think they had COVID-19, namely staying out of the workplace until after three days with no fever, respiratory symptoms (coughing, shortness of breath) have improved, and 10 days since symptoms first appeared.
Q: What should an employer do if an employee reports being in close contact with someone who has COVID-19 or COVID-19 symptoms?
A: The employer should send the employee home, and require that he or she self-isolate for 14 days and self-monitor for any symptoms.
Q: What should an employer do if an employee has been in close contact in the workplace with someone with COVID-19 or COVID-19 symptoms?
A: The employer should inform the employee that he or she has been or may have been, as applicable, in close contact with an individual with COVID-19 or COVID-19 symptoms but cannot disclose the identity of the sick employee. The employer should send the employee home, and require that he or she self-isolate for 14 days and self-monitor for any symptoms.
Q: If a job may only be performed at the workplace, are there reasonable accommodations for individuals with disabilities that could offer protection to an employee who, due to a preexisting disability, is at higher risk from COVID-19?
A: Yes, there may be reasonable accommodations that do not constitute an “undue hardship.” Accommodations for those who request reduced contact with others due to a disability may include changes to the work environment, such as designating one-way aisles, using plexiglass, tables or other barriers to ensure minimum distances between customers and co-workers or other accommodations that reduce chances of exposure. Other accommodations may include temporary job restructuring of marginal job duties, temporary transfers to a different position, modifying a work schedule or shift assignment.
Q: When an employer requires some or all of its employees to telework because of COVID-19, or government officials require employers to shut down their facilities and have workers telework, is the employer required to provide a teleworking employee with the same reasonable accommodations that it provides to this individual in the workplace?*
A: If such a request for reasonable accommodation is made, the employer and employee should discuss what the employee needs and why, and whether the same or a different accommodation could suffice in the home setting. For example, an employee may already have certain things in their home to enable them to do their job so that they do not need to have all of the accommodations that are provided in the workplace. Additionally, the “undue hardship” considerations may be different for the employer when evaluating a request for accommodation when teleworking rather than working in the workplace (e.g., the accommodating measure may be unfeasible or unavailable, or a necessary employer assessment may be too difficult to conduct). As a practical matter, and in light of the circumstances, employers and employees should both be creative and flexible about what can be done when an employee needs a reasonable accommodation for telework, and interim accommodations may be appropriate depending on the particular facts and circumstances.
Q: Is an employee entitled to a reasonable accommodation in order to avoid exposing a family member who is at higher risk of severe illness from COVID-19 due to an underlying medical condition?
A: No, although employers may not discriminate against an employee based on his or her association with an individual with a disability, employers are generally not required to accommodate an employee without a disability based on the disability-related needs of a family member or other person with whom the employee is associated.
Q: Since individuals who are 65 years of age and over are at higher risk for a severe case of COVID-19 if they contract the virus, are employers required to accommodate them?
A: No, there is no legal requirement to accommodate individuals with respect to COVID-19 solely due to their age, but the CDC encourages employers to offer maximum flexibilities to such individuals.
Q: Since individuals who are pregnant are at higher risk for a severe case of COVID-19 if they contract the virus, are employers required to accommodate them?
A: Employees who have pregnancy-related medical conditions may be entitled to reasonable accommodations under applicable law. Pregnant employees also must be treated the same as others who are similar in their ability or inability to work. State or local law also might require reasonable accommodations for pregnant employees.
Q: May an employee refuse to return to the workplace due to a fear of exposure to COVID-19?
A: Generally no. An employee’s right to refuse to return to the workplace must, among other things, be based on (i) a genuine belief that an imminent danger exists, (ii) a reasonable person would agree that there is a real danger of death or serious injury, (iii) the employee has asked the employer to eliminate the danger and the employer failed to do so, and (iv) there is not enough time to get it corrected through regular enforcement channels, such as requesting an OSHA inspection. Employees whose refusal to return to the workplace stems from a mental health condition, such as anxiety disorder, depression, obsessive-compulsive disorder or post-traumatic stress disorder, however, may be entitled to reasonable accommodation under applicable law.
Employees whose refusal to return to the workplace stems from a mental health condition, such as anxiety disorder, depression, obsessive-compulsive disorder or post-traumatic stress disorder, however, may be entitled to reasonable accommodation under applicable law. Notwithstanding this, if employers granted telework to employees as a COVID-19 preventative measure but have since reopened and recalled employees to the worksite, the employer does not need to automatically grant telework as a reasonable accommodation to every employee with a disability who requests to continue this arrangement (and if the employer excused an employee from performing one or more essential functions during the telework period, the employer does not, as a general matter, need to continue to excuse such essential function(s) once the worksite reopens). The employer may restore essential duties or the prior work arrangement and conduct a fact-specific determination to evaluate any requests for continued or new accommodations under the usual ADA rules.
Guidance on Returning to Work, OSHA (June 18, 2020).
Pandemic Preparedness in the Workplace and the Americans with Disabilities Act, EEOC (Updated March 21, 2020).
What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, EEOC (Updated September 8, 2020).
This publication is provided for your convenience and does not constitute legal advice. This publication is protected by copyright.
© 2020 White & Case LLP