Linda Edwards, Partner, RumbergerKirk, Tallahassee.

The workplace impact of the response to the COVID-19 outbreak has caused employers to act with understandable caution. Because there are many unknowns about the disease itself, employers are seeking guidance to ensure that, under the guise of employee safety and health, they do not violate other workplace laws. As states ease stay-at-home orders and once reluctant remote workers began to trickle back to workplaces, employers should rely on existing nondiscriminatory practices as well as pay particular attention to guidance from the U.S. Equal Employment Opportunity Commission (EEOC), Department of Labor and Occupational Safety and Health Administration (OSHA) and other entities that regulate workplace issues.

Guidance for Employers From the EEOC

On May 7, the EEOC updated guidance to employers and specifically reminded employers that  "the EEO laws, including the Americans with Disabilities Act (ADA) and Rehabilitation Act, continue to apply during the time of the COVID-19 pandemic, but they do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state and local public health authorities about steps employers should take regarding COVID-19. Employers should remember that guidance from public health authorities is likely to change as the COVID-19 pandemic evolves. Therefore, employers should continue to follow the most current information on maintaining workplace safety."

So, what can an employer do to ensure they are following the CDC and health authorities without violating other laws? The EEOC has prepared a question and answer document ("What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws") that answers most employer questions. However, two of the most common questions deal with whether an employer may ask about an employee's health and whether an employer can take employees; temperatures. Keeping in mind the prohibitions of the Americans with Disabilities Act (ADA) regarding inquiries that require employees to disclose information about disabilities, employers can ask an employee if they have cold or flu symptoms, but cannot ask if the employee has a compromised immune system or whether they have a condition such as cancer or HIV/AIDS. While employers cannot conduct a test on employees that requires the use of medical equipment under normal circumstances, the EEOC advises that "if pandemic influenza becomes widespread in the community as assessed by state or local health authorities or the CDC, then employers may measure employees' body temperature." Further, "Because the CDC and state and local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions as of March, employers may measure employees' body temperature. As with all medical information, the fact that an employee had a fever or other symptoms would be subject to ADA confidentiality requirements." Before taking any action about testing or inquiring about medical conditions, employers should check the EEOC website, the CDC website or check with their employment counsel. Employers should remember to keep any medically related information confidential, however the EEOC guidelines allow employers to notify public health officials if the employer learns that an employee has COVID-19.

Whatever an employer does, consistency is always important. For example, if international travel is a part of the job for certain job classifications, only asking women, for example, to remain at home for a certain period and not asking male employees, sets the employer up for a gender discrimination claim. There has been much in the news about national origin discrimination because the initial information suggests that COVID-19 originated in China. Employers should not single out persons of Chinese descent to question nor should employers allow other employees to engage in hostile or harassing conduct towards persons of Chinese descent.

Hiring and Onboarding in the Time of Coronavirus

Employers with nondiscriminatory onboarding and hiring practices should not stray from those practices and in fact, should double-down on consistent application. The ADA allows employers to screen job applicants for COVID-19 after making a conditional job offer and may delay the start date of an applicant that has COVID-19 or the associated symptoms. If the employer was hiring an applicant to meet an immediate need and the employee has COVID-19 or associated symptoms, the employer may withdraw the offer. In every circumstance, the employer should apply the practice consistently. Employers should be mindful that an applicant's membership in a vulnerable class (over 65, pregnant or other high risk) is not a legitimate reason for taking any adverse action related to COVID-19.

The success or failure of remote working either confirmed an employer's worst fears or provided a fresh revelation about how and where to accomplish work tasks. If there are tasks that cannot be performed remotely, employers can still and must engage in the interactive process to identify reasonable accommodations for employees with disabilities. Even if an employee's asymptomatic physical or mental disability is exacerbated by COVID-19, employers should still engage in the interactive process to determine whether there is a reasonable accommodation that allows the employee to perform the essential functions of their position with or without an accommodation.

Employees already receiving an accommodation may need a different accommodation while working remotely. Employees should know that they are still entitled to an accommodation even if they are not coming into the normal workplace. In every instance, reasonable accommodations are still required whether the employee is onsite or working remotely. Temporary accommodations are also available during this period. The announcement of workplace closures came pretty suddenly, and employers may have been unable to fully address all of the issues initially; however, with the passage of time, employers should have engaged in the interactive process and addressed any need for accommodation.

Although the Families First Coronavirus Response Act (FFCRA) and the Payroll Protection Act rightfully captured employer's immediate attention, employers would do well to rely on employment practices that are compliant with existing employment laws to avoid future violations.

Linda Bond Edwards is a labor and employment attorney with RumbergerKirk. As a former corporate director of human resources, Edwards brings to her legal practice the pragmatic and real-world experiences arising from the employer-employee relationship. She can be reached at 850-222.6550 or [email protected].