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April 20, 2020

Stroock Special Bulletin

By: Howard S. Lavin, Elizabeth E. DiMichele

As public officials begin to contemplate loosening or lifting restrictions on work and travel, employers should consider how they will address some of the thorny employment issues that are inevitable as their businesses reopen and employees and customers begin to return to workspaces. Even if final answers to these questions must await further public health developments and governmental guidance, exploring these issues and potential resolutions sooner rather than later will serve employers well. A few of the issues for employers to consider are discussed below.

Steps to Protect Essential Workers

When can certain employees who may have been exposed to COVID-19 return to essential work and what steps must employers take to protect them and others?

The Centers for Disease Control and Prevention (CDC) recently issued guidance about critical infrastructure workers who may have been exposed to an individual with suspected or confirmed COVID-19. To ensure continuity of essential functions, the CDC advised that such employees may be permitted to continue to work following potential COVID-19 exposure, provided they remain asymptomatic and additional precautions are taken to protect them and others, including:

  • Pre-Screen: Employers should measure the employee’s temperature and assess symptoms prior to them starting work — ideally before the individual enters the facility;
  • Wear a Mask: The employee should wear a face mask at all times while in the workplace for 14 days after last exposure. Employers can issue face masks or can approve the employee’s supplied cloth face coverings in the event of shortages; and
  • Social Distancing: The employee should maintain 6 feet of distance and otherwise practice social distancing as work duties permit in the workplace.

Similarly, on April 12, 2020, Governor Cuomo issued an Executive Order requiring all employees of essential businesses who are present in the workplace to wear face coverings when in direct contact with customers or members of the public from April 15 through May 12, 2020. These face coverings must be provided at the essential employers’ expense.

On April 15, 2020, while discussing the gradual reopening of businesses, Governor Cuomo stated that he would order all people to wear a face covering while in public to help combat COVID-19. This Executive Order, effective Friday, April 17, 2020, at 8 p.m., requires any individual over age 2 who is medically able to tolerate a face covering to cover his or her nose and mouth with a mask or cloth face covering when in a public place and unable to maintain, or when not maintaining, social distancing. In another Executive Order, also effective Friday, April 17, 2020, at 8 p.m., the mask or face-covering requirement has been extended to individuals using public or private transportation carriers or other for-hire vehicles, as well as people operating such public or private transport while there are any passengers in such vehicle.

Governor Cuomo has emphasized telecommuting for those whose jobs enable them to do so, as well as for the most vulnerable. Governor Cuomo has outlined a phased return, which includes extending the “pause” order until May 15, 2020, and then evaluating risk on an industry-by-industry basis and reopening business in phases based on their priority and risk. Businesses deemed “more essential” with an inherent low risk of workplace infection to employees and customers will be prioritized, followed by other businesses considered “less essential” or those that present a higher risk of spreading infection. In an effort to reduce the widespread return of COVID-19, the Governor highlighted designing conference rooms and workspaces to help ensure social distancing, such as desks being at least 6 feet apart.

Expanding Guidelines for Essential Workers

Can and should employers apply the above-highlighted CDC essential-worker guidelines to non-essential workers, in whole or in part, and do they risk potential liability if they do so?

As businesses begin to map out their return — albeit to a new normal — will this temperature check recommendation be expanded to cover all businesses with on-site employees? And, will employers risk liability under the Americans With Disabilities Act (ADA) and analogous state and local laws if they conduct temperature screenings?

The ADA regulates both disability-related inquiries and medical examinations. The Equal Employment Opportunity Commission (EEOC), the federal agency charged with enforcing the ADA, advises that an inquiry is disability-related if it is likely to elicit information about a disability, such as asking an individual if his or her immune system is compromised. This is because a weak or compromised immune system can be closely associated with various ADA-protected disabilities. On the other hand, questioning an employee about whether he or she is experiencing cold or seasonal flu symptoms is not likely to elicit information about a disability.

Temperature Screenings

Turning to medical examinations, the EEOC long has taken the position that temperature screens are medical exams for purposes of the ADA. Under its traditional analysis, the EEOC permits post-hire employee disability-related inquiries or medical examinations only if they are job-related and consistent with business necessity. To meet this standard, an employer must have a reasonable belief, based on objective evidence, that:

  • an employee’s ability to perform essential job functions will be impaired by a medical condition; or
  • an employee will pose a direct threat due to a medical condition — that is, a significant risk of substantial harm to the health or safety of the employee himself or herself or to others, that cannot be eliminated or reduced by reasonable accommodation.

The EEOC has recognized that the COVID-19 pandemic enabled employers to take employees' body temperatures without running afoul of the ADA. In its summary of its April 17, 2020, guidance, the EEOC noted that “the ADA … continue[s] to apply during the time of the COVID-19 pandemic, but … do[es] not interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state/local public health authorities about steps employers should take regarding COVID-19.” Given that the CDC and state and local governmental authorities, including health departments, are mandating or recommending various measures, such as masks and health screens, this statement is especially helpful.

Significantly, the EEOC acknowledged that as shelter-in-place restrictions are eased and employees return to on-site employment, companies that follow guidance from CDC or other public health authorities will not run afoul of the ADA, such as by taking temperatures and asking questions about symptoms (or requiring self-reporting) of all those entering the workplace, provided that company does so on an evenhanded, non-discriminatory basis without regard to any protected characteristic. The EEOC, however, reminded employers that they should continue to follow the most current information on maintaining workplace safety since guidance from public health authorities is likely to change as the COVID-19 pandemic evolves.

The ADA requires that all medical information about a particular employee be stored separately from the employee's personnel file, thereby limiting access to this confidential information. Medical information related to COVID-19 includes employees’ statements that they are or suspect that they are infected and the results of taking employees’ temperature.

Although companies must take steps to prevent the disclosure of medical information, such as not disseminating the identity of an employee who has tested positive for COVID-19, the EEOC has suggested some flexibility in relation to the COVID-19 pandemic. In its April 17, 2020, guidance, the EEOC recognized that an employer may disclose the name of an employee to a public health agency when it learns that the employee has COVID-19. Perhaps even more instructive, the EEOC stated that a temporary staffing agency or a contractor that placed an employee in an employer's workplace may notify such employer if it learns that the temporary employee has COVID-19, explaining that the employer may need to determine if this temporary worker had contact with others at the workplace.

As business leaders throughout the U.S. ask if their companies will be able to make (i) broad inquiries about the health of their employees and (ii) limited disclosures about such information to help prevent the reemergence of the COVID-19 pandemic, the EEOC’s most recent guidance is quite helpful. And, at least in the short term, employers taking reasonable steps to help mitigate the potential second wave of COVID-19 certainly would have the better position when defending potential claims.

Taking a Risk-Based Approach to Returning Employees On-Site

According to the CDC, certain individuals are at greater risk from COVID-19, including those age 65 and older and individuals of any age who have serious underlying medical conditions, particularly if not well controlled, including those with (i) chronic lung disease or moderate to severe asthma, (ii) serious heart conditions, (iii) compromised immune systems caused by, among other conditions, cancer treatment, smoking, bone marrow or organ transplantation, (iv) poorly controlled HIV, (v) diabetes, (vi) chronic kidney disease undergoing dialysis and (vii) liver disease. As a result, the CDC advises those at-risk for severe illness to take various protective measures.

How can employers mitigate potential risk arising out of COVID-19 precautions?  Should companies take a similar risk-based approach to returning employees to on-site employment? And, what would this look like?

In its April 17, 2020, update, the EEOC issued guidance about reasonable accommodations related to COVID-19, advising that employers may initiate the interactive process and ask employees with disabilities if they will require future accommodations when they are permitted to return to the workplace. This is helpful with respect to employees with known disabilities, including those who have received accommodations in the past. However, what if an employee simply is in an at-risk group?

For example, a company might share the CDC guidelines with its employees and give employees who fall within any of the at-risk groups the option to work from home even after others start to return. Caution is warranted about asking employees to disclose things like medical conditions (e.g., compromised immune systems, pregnancy, etc.) Therefore, an employer could (i) tell employees that they need not share the reason why they will not be on-site and/or (ii) promise that medical information will be kept confidential and shared both in accordance with applicable law. This is not a perfect solution since the employee would still be identified as at-risk. Those who remain at home may assert that they were denied equal terms and conditions of employment based on disability, age or gender, for example. Even if those claims are not asserted in connection with the reopening, an employee who later is subject to an adverse action, such as termination, could claim his or her identification as being in the at-risk group was the deciding factor in the company’s decision; however, without more, such claims are unlikely to be found to have merit.

On the other hand, companies may face claims if their reopening is not in line with the recommendations issued by the CDC and/or state or local government, including about the date for reopening and the number of employees and customers or visitors on-site. At least theoretically, the likelihood of a claim is greater from at-risk workers who are required to return to working on-site. This may suggest a phased-in reopening, with a percentage of staff gradually returning over a prescribed period.

Another way to proceed would be to make reporting to work voluntary for all employees able to continue to work from home, including for those who are at-risk. Depending on the business, this may be impractical, however, and undermine the company’s ability to reopen.

School Closings — A Complicating Factor

Childcare issues, particularly school closings, complicate the return to work. Schools in New York City, for example, remain closed. Mayor de Blasio has said they will not reopen until September 2020. Governor Cuomo is taking a wait-and-see approach, stating that the reopening of New York City’s schools is part of a bigger regional reopening puzzle. When schools reopen will class size be decreased to promote social distancing? What about half days? And how will this impact working parents?

These are some of the many issues employers face as they begin to navigate the challenges posed by reopening their businesses. Unfortunately, establishing next steps requires additional guidance from public health experts and governmental authorities. Yet, the time is right to explore these issues and potential solutions.

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For More Information:

Howard S. Lavin

Elizabeth E. DiMichele

This Stroock publication offers general information and should not be taken or used as legal advice for specific situations, which depend on the evaluation of precise factual circumstances. Please note that Stroock does not undertake to update its publications after their publication date to reflect subsequent developments. This Stroock publication may contain attorney advertising. Prior results do not guarantee a similar outcome.