With the exception of a couple hotspots, most of the nation has reopened to some extent. Now come the many logistical and other decisions business leaders must make. Minimizing risk from potential lawsuits needs to be an important part of this process, for small mistakes now can be costly down the road. Here are some of the issues they must consider.
Discrimination. Unless an employer plans to return all furloughed employees at once, it will need an objective, nondiscriminatory and legitimate rehiring plan. Title VII of the Civil Rights Act of 1964 makes it unlawful to discriminate against any employee based on a protected characteristic, which includes age, race, religion, gender, disability status, and as of June 15, sexual orientation. The employer must also ensure that the recall process does not have a disparate impact on any group. Is the group of employees selected for recall representative of the furloughed employees as a whole? This same analysis should have been done if employees were initially laid off or furloughed, and the recall may give the employer a last chance to remedy any prior mistakes.
Required paid leave. Over the last few months, numerous federal, state and local emergency paid leave laws have been enacted with little advance notice to employers, and most of these laws took effect immediately (or on very short notice). This created a patchwork of varying paid leave laws that employers had to digest and implement essentially overnight. Understandably, there are going to be instances of noncompliance with the technical details of each law. All that employers can do to mitigate against risk in this area is to try to stay on top of federal, state and local paid leave developments and adopt compliant policies and practices — and interpret the qualifying reasons liberally in favor of coverage.
Employee testing. Whether a business is legally required to perform testing on employees entering its facility, or the company decides it is a good idea, any testing needs to be done properly, cautiously and applied to all employees equally. Employers should ensure that certain employees (e.g., older, Asian-American or disabled employees) are not being singled out, and are not required to undergo additional testing or other safety precautions.
As far as permissible types of testing, the Equal Employment Opportunity Commission has authorized the touchless taking of employees’ temperatures. The generally accepted threshold for a fever is 100.4 degrees, and it is preferable for the person doing the forehead scans to have a modicum of training.
The EEOC has also stated that employers may ask all employees who will be physically entering the workplace if they have Covid-19, symptoms associated with Covid-19, or ask if they have been tested for Covid-19 or have been in close proximity to someone recently diagnosed. Symptoms associated with Covid-19 include cough, sore throat, fever, chills, shortness of breath, new loss of smell or taste, as well as gastrointestinal problems, such as nausea, diarrhea and vomiting. However, employers may not ask these questions of employees who are teleworking.
Employees with symptoms or who fail the temperature check should be sent home to consult with their own healthcare provider. Employees can and should be denied entry into the workplace if they refuse to answer screening questions and/or submit to temperature screening. All medical information obtained from an employee and documented (including whether the employee has Covid-19) must be maintained in a confidential medical file for the employee.
PPE. If the employer requires personal protective equipment in the workplace (e.g., masks or gloves), OSHA regulations require that the employees be trained on how to properly use the equipment. If an injury occurs and no training was provided, it may be an OSHA violation. If an employee reports that they have a disability that prevents them from wearing PPE, such as asthma, the employer has a duty to reasonably accommodate the employee by providing alternative PPE, or allowing an exception.
While employers will be focused on recouping their economic losses due to the shelter-in-place orders, ensuring a safe workplace is critical for the health of the business. Cutting corners with respect to returning employees to the office may negate any gains if the result is costly, and avoidable, litigation.
