Exclusive Interview with Laura Calhoun, Senior Counsel, Clark Hill Strasburger

 

“The decision to implement a Covid testing program, and the decision on who should conduct the testing, will require a case by case analysis. This analysis may include many factors, such as the size of the workforce, proximity of the workers to each other, the prevalence of the virus in the local community, the feasibility and expense of conducting the testing, the accuracy and reliability of the available testing and the limits of the information obtained,” notes Laura Calhoun, Senior Counsel, at Clark Hill Strasburger in an interaction with HR.com. Laura also touches the additional rules and regulation companies must be aware of when re-opening, what tests are allowed and what not, and how employers can ensure safety when employees return to work. Excerpts from the interview:

Q: Now that EEOC prohibits the mandatory COVID-19 antibody testing as a condition for employees' return to the workplace, how should companies approach this aspect?

Laura: The EEOC has made clear that a COVID-19 antibody test constitutes a medical examination under the Americans With Disabilities Act. The EEOC has also determined that antibody testing does not meet the ADA’s “job related and consistent with business necessity” standard for medical examinations or inquiries for employees; therefore, employers are prohibited from requiring an employee to submit to an antibody test before being allowed to return to work.  

In making this determination, the EEOC followed the CDC’s Interim Guidelines which state that antibody test results “should not be used to make decisions about returning persons to the workplace”. As such, the EEOC noted that it would monitor the CDC guidance for any changes and could update its own decision on this point accordingly.  

Similarly, employers should continue to monitor the guidance from the EEOC and the CDC on this subject.  For now, to be in compliance with the ADA, employers must not require antibody testing of any employees.

Q: What tests are allowed and what are not? How can employers ensure that those who return are not infected with Coronavirus?

Laura: Under the Americans With Disabilities Act, employers may conduct mandatory medical testing of employees when such testing is “job related and consistent with business necessity.”  Applying this standard, the EEOC has specified that during the COVID-19 pandemic, employers may conduct medical screening and testing to determine if employees entering the workplace have COVID-19.  This is permissible under the circumstances because an individual with the virus will pose a direct threat to the health of others. 

The EEOC has held that health-screening questions are permitted under the ADA during the pandemic. Specifically, employers may ask employees if they are experiencing symptoms of COVID-19. Based on CDC guidance, these symptoms include: 
 

• Cough
• Fever or chills
• Shortness of breath or difficulty breathing
• Fatigue
• Muscle or body aches
• Headache
• New loss of taste or smell
• Sore throat
• Congestion or runny nose
• Nausea or vomiting
• Diarrhea

Note that the CDC also states that the list may not include all possible symptoms and may be updated as more information is learned about COVID-19.
 
For now, an employer may ask if an employee is experiencing any of the above listed symptoms.  If the answer is “yes”, the employee should be sent home. Per the CDC, the employee may be allowed to return to work when: (1) released for work by a healthcare provider;  or (2) if it has been at least 10 days since symptoms first appeared and (i) the employee has gone at least 24 hours with no fever without using fever-reducing medication, and (ii) symptoms have improved. 

Another permissible health-screening method during the pandemic is measuring body temperature.  Although this is a medical examination under ADA, because CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued related precautions, the EEOC will permit employers to take the body temperature of employees before allowing them to enter the workplace. If the employee has a temperature of 100.4 degrees or higher, the employee should be sent home until such time as the employee is clear for work under the circumstances listed above.
 
In addition to health questions and temperature screening, employers have the option to require employees to undergo COVID-19 testing. If the employer elects to conduct COVID-19 testing, the EEOC has made clear that employers must “ensure that the tests are accurate and reliable.”   The EEOC directs employers to use guidance from the U.S. Food and Drug Administration, the CDC and other public health authorities to evaluate what may or may not be considered safe and accurate testing. 

The decision to implement such a testing program, and the decision on who should conduct the testing, will require a case by case analysis. This analysis may include many factors, such as the size of the workforce, proximity of the workers to each other, the prevalence of the virus in the local community, the feasibility and expense of conducting the testing, the accuracy and reliability of the available testing and the limits of the information obtained. The EEOC points out that many tests may result in false-negatives or false-positives and, regardless, accurate testing only reveals if the virus is present at that time.  

Any outside company contracted to conduct the testing should be thoroughly vetted, but will likely be better equipped than many employers to safely conduct the testing.  

If an employer does opt to conduct COVID-19 testing on employees, whether on its own or through a contractor, the employer should seek legal counsel to ensure compliance with applicable federal and state laws, which may also vary. 

Q: What are the additional rules and regulations that companies should be aware of while re-opening?

Laura: When re-opening the workplace, all employers should be mindful that there are  multiple legal obligations in play during the COVID-19 pandemic.  An employer’s obligations will vary depending on factors such as: the size of the employer (number of employees), the location of the employer (state laws vary from federal laws; also laws may vary for employees working in a  different city or state from the employer’s main office). Legal obligations may also differ based on the employer’s industry, as well state and local orders specific to COVID-19. Some of the federal laws and related regulations specifically applicable to employers re-opening during the pandemic include the following:   

Under OSHA, it has been the law that employers must provide a safe working environment. To assist employers on meeting this obligation during the COVID-19 pandemic, OSHA has issued “Guidance on  Preparing Workplaces for Covid-19” which can be found at: https://www.dol.gov/newsroom/releases/osha/osha20200309. OSHA’s guidance  recommends that employers conduct a workplace risk assessment and establish an infection prevention and control policy.  OSHA also refers to the CDC’s recommendations on infection prevention and control which can be found at: https://www.cdc.gov/coronavirus/2019-cov/community/organizations/businesses-employers.html. 

In addition, OSHA has issued specific guidance and alerts to various industries that should be adhered to by employers in those specific industries. Safety plans will differ based on the workplace; however; worker safety must be a top priority at this time.  Putting in the effort to make the workplace safe is a critical step toward meeting that legal obligation.   Once employees return to work, if the employer is covered by the Families First Coronavirus Response Act, the employer will need to provide leave when an employee is eligible. This includes providing paid leave under the Emergency Paid Sick Leave Act and leave under the Emergency Family and Medical Leave Expansion Act (12 weeks, with the first two weeks as unpaid leave and the last 10 weeks at 2/3 regular pay).  There are numerous nuances to these new laws, therefore, legal advice should be sought. 

In addition, if an employee tests positive for COVID-19, OSHA also now requires all employers to conduct a reasonable and good faith investigation to try to determine whether it was work related.  In its May 19, 2020 Revised Enforcement Policy, OSHA held that the investigation does not necessarily have to be extensive and that it may be sufficient to: 
 

• to ask the employee how he believes he contracted the COVID-19 illness; 
• while respecting employee privacy, discuss with the employee his work and out-of-work activities that may have led to the COVID-19 illness; and 
• review the employee's work environment for potential COVID-19  exposure. (this should include any other instances of workers in that environment contracting COVID-19 illness). 

As per OSHA: “If, after the reasonable and good faith inquiry, the employer cannot determine whether it is more likely than not that exposure in the workplace played a causal role with respect to a particular case of COVID-19, the employer does not need to record that COVID-19 illness.”   

Otherwise, the illness must be recorded pursuant to existing regulations, with the exception of employers with 10 or fewer employees and certain employers in low hazard industries that have only limited recording obligations (they need only report work-related COVID-19 illnesses that result in a fatality or an employee's in-patient hospitalization, amputation, or loss of an eye).  For more information about this Revised Enforcement Policy see: https://www.dol.gov/newsroom/releases/osha/osha20200519-0.

Employers must also remember to comply with any obligations under the Americans With Disabilities Act, and any applicable state or local laws, for employee’s that may need reasonable accommodation for a disability.  For instance, if an employee reports that they have a disability that puts them at higher risk for complications if they were to contract COVID-19, then the employer has a duty to engage in the interactive process with that employee to determine whether a reasonable accommodation can be made.  The most common option during the pandemic has been to allow the employee to work remotely if feasible based on the job.

The above is not an exhaustive list. The law, and related guidance from the various  government agencies, has been evolving along with the pandemic. State local orders have also been repeatedly revised.  Therefore, it is key for employers to keep up, comply and seek legal counsel when faced with COVID-19 related issues.