By Christopher M. Lewis
Jon Kabat-Zinn, Professor Emeritus of Medicine at the University of Massachusetts Medical School, is credited as saying: “You can’t stop the waves, but you can learn how to surf.” This advice rings especially true today as employers attempt to navigate the murky and uncertain waters caused by the novel coronavirus disease of 2019 (“COVID-19”). As the vast majority of the nation begin to return to some semblance of normalcy, employers must now make informed decisions that often feel as though they are built on shifting sands instead of concrete legal principles to which they are accustomed. The good news is that we are all in the same boat. The bad news is that the unpredictability of the ongoing pandemic and its effects are changing week-to-week, day-to-day, and sometimes even hour-to-hour. Like waves, the ongoing pandemic ebbs and flows based on several factors beyond the scope of this article. Nonetheless, there are practical steps employers can take to navigate the treacherous waters caused by COVID-19 to protect themselves from liability, and more importantly, to ensure the safety and wellbeing of their employees. In other words, as the ongoing pandemic undulates, employers must learn how to surf.
The Importance of Having a Written and Disseminated Plan for Returning Employees.
Although “it depends” is among the most frustrating answers that an attorney can give to an employer, it is necessary to understand that there is no one-size-fits-all solution to returning to work during a pandemic. Employers should consider the number of employees, their proximity to each other, the nature of the business, potential contact with the public-at-large, and several other unique factors. The approach that any given employer takes to ensure the safety of its workforce must therefore be narrowly tailored and specific.
Thus, as a threshold matter, employers should develop a concise, written plan that can be easily understood by employees who are returning to work. A written plan ensures that employers anticipate and critically contemplate the above-referenced considerations, and more, while employees receive an assurance that their employers are making informed decisions based on the specific needs of the given workplace. It is therefore paramount for employers to not only develop a written plan, but to also disseminate the plan in an efficient and effective manner. Employers should also consider having employees sign and return an acknowledgment of any plan for the company’s records.
Any written plan for employees to return to work must necessarily comply with any rules and regulations of the locality or state in which a company operates. Generally, however, it is good practice for employers to outline important factors such as social distancing measures, the availability of company-provided personal protective equipment, and/or regular cleaning schedules—to the extent that these measures are feasible. Employers should also consider the practicality of reorienting workspaces, erecting physical barriers, staggering shifts/breaks, and screening employees before they enter the company’s facility. Moreover, employers should outline a protocol for when/if an employee exhibits symptoms or tests positive for COVID-19. Each of these measures have the potential to quell employees’ anxieties in returning to work, while protecting the company from potential litigation. As stated above, an employer’s specific industry, workplace, and culture are all factors to consider when developing these plans. There is no magic bullet. Developing a thorough plan that protects the company, employees, and customers requires a detailed review of all operations. Indeed, it is not always an easy process. Yet making informed decisions on the frontend has the potential to subvert any potential litigation arising from inaction, even if unintentional.
Should employers require masks and testing for returning employees?
In recent weeks, a polarizing debate has arisen on whether employees and customers alike must wear masks in private places of business. To that end, the Equal Employment Opportunity Commission (“EEOC”) has provided the following guidance:
An employer may require employees to wear protective gear (for example, masks and gloves) and observe infection control practices (for example, regular hand washing and social distancing protocols).
However, where an employee with a disability needs a related reasonable accommodation under the ADA (e.g., non-latex gloves, modified face masks for interpreters or others who communicate with an employee who uses lip reading, or gowns designed for individuals who use wheelchairs), or a religious accommodation under Title VII (such as modified equipment due to religious garb), the employer should discuss the request and provide the modification or an alternative if feasible and not an undue hardship on the operation of the employer’s business under the ADA or Title VII.
Based on guidance from medical and public health authorities, employers should still require – to the greatest extent possible – that employees observe infection control practices (such as social distancing, regular handwashing, and other measures) in the workplace to prevent transmission of COVID-19.
It is therefore permissible to require employees to wear masks to the extent that employers comply with relevant provisions of the ADA or Title VII. As to testing for COVID-19 prior to returning, the EEOC provided the following guidance on April 23, 2020:
The ADA requires that any mandatory medical test of employees be “job related and consistent with business necessity.” Applying this standard to the current circumstances of the COVID-19 pandemic, employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. Therefore, an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.
Consistent with the ADA standard, employers should ensure that the tests are accurate and reliable. For example, employers may review guidance from the U.S. Food and Drug Administration about what may or may not be considered safe and accurate testing, as well as guidance from CDC or other public health authorities, and check for updates. Employers may wish to consider the incidence of false-positives or false-negatives associated with a particular test. Finally, note that accurate testing only reveals if the virus is currently present; a negative test does not mean the employee will not acquire the virus later.
On the other hand, however, the EEOC provided guidance on June 17, 2020 as to whether employers may require antibody testing, specifically:
An antibody test constitutes a medical examination under the ADA. In light of CDC’s Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace,” an antibody test at this time does not meet the ADA’s “job related and consistent with business necessity” standard for medical examinations or inquiries for current employees. Therefore, requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA.
Conclusion
The bottom-line is this: Employers should take any and all reasonable and practical steps to ensure the safety and wellbeing of returning employees when bringing them back into the workplace. Employers must be mindful, however, that requiring personal protective equipment, much like establishing an initial plan of action, is not a one-size-fits-all proposition. In short, employers that remain flexible and intentional in their efforts to protect returning employees will truly “learn how to surf” until the tide turns against COVID-19.
Christopher M. Lewis, Associate
Ogletree Deakins
[email protected]
www.ogletree.com