The COVID-19 pandemic will eventually subside. But for now, it is threatening to overwhelm a significant portion of our national, state and local economies. Social distancing to a six-foot minimum is relatively easy compared to the challenges facing employers in responding quickly and effectively to keep the workplace safe for all employees in this pandemic.
The Center for Disease Control (CDC) is issuing guidance to employers with respect to how best to keep the workplace safe at this time of the pandemic. See, for example, www.osha.gov. That guidance tracks well with the general duty clause under the Occupational Safety and Health Act (OSH Act.) With the CDC guidance and OSH Act in mind, questions arise such as how do employment laws like the Americans with Disabilities Act (ADA) meant to protect an individual worker’s rights from discrimination and retaliation, affect the decisions that the responsible employer must make in balancing safety versus individual employee interests? May the responsible employer, in the urgency of a pandemic, take steps that it ordinarily would not take such as taking the temperature of an employee who does not show signs of COVID-19 or requiring an employee to self-quarantine if he or she has recently traveled to an area known to be experiencing so-called “community spread” to protect the workplace?
In addressing the many issues that must be considered by employers trying to manage their business effectively, it is important to note that the ADA has not been repealed. Employers must remain mindful of the rights of employees to be free from disability discrimination (or the perception of a disability), the requirement for reasonable accommodations and the limitations on medical examinations and inquiries, under the relevant rules and regulations of the ADA. In ordinary times, when there is not a direct threat to the workplace posed by a pandemic, this means to limit the inquiries that an employer makes about the health status of any individual employee.
However, in instances where a health pandemic and a national emergency have been declared, an employer that acts reasonably in making health-related inquiries in the interest of overall workplace safety will almost certainly be afforded more latitude under applicable employment laws, even when aggressively engaging in health-related inquiries of its workforce or requires an employee to leave the workplace due to suspected COVID-19 exposure than it would under ordinary circumstances. In other words, the balance between protecting individual employee rights and overall workplace safety has shifted in favor of workplace safety. The name of the game for the prudent, lawful employer is to achieve workplace safety in a manner that is reasonable and consistent with federal and state health experts. Of course, what is reasonable may vary significantly from business to business. For example, a business that does not require travel may not have the same need to ask its employees about disease-related symptoms as a business that ordinarily has employees that travel throughout the country.
The Equal Employment Opportunity Commission (EEOC), the federal agency that enforces the ADA, has recently confirmed that employers should follow the guidance of the CDC. The EEOC issued new guidance on March 19, 2020 that specifically states that while the ADA continues to apply in times of a pandemic, the law should not “prevent employers from following the guidelines and suggestions made by the Center for Disease Control” or the guidance of state or local authorities. See, for example, www.eeoc.gov. This means that employers may, in some circumstances, take the temperature of their employers. But caution is warranted for many reasons, including the fact that a person with COVID-19 disease may not have a fever, according to the CDC.
The Wisconsin government entity that addresses statewide health issues is the Department of Health Services (DHS). It has a robust website that offers helpful guidance to employers and others about COVID-19. It is found at www.dhs.gov.
The EEOC’s updated pandemic guidance is speaking clearly to employers. Prudent employers are advised as follows:
- Keep your workplaces safe and stay within the bounds of applicable law, follow the guidance of the CDC and state and local health officials.
- Remember to keep specific health information on individual employees separate and confidential.
- Make inquiries about the health of your workers, but do so reasonably and without hysteria by following the guidance of the health experts.
- Educate your employees about the information available through the CDC and the Wisconsin DHS.
- Remind employees often of effective measures to reduce the spread of COVID-19.
Finally, the responsible employer with fewer than 500 employees is advised to review and follow, if applicable, the new mandated sick leave and emergency FMLA benefits to be provided to most employees under the recently passed Families First Corona virus Response Act. The prudent employer will want to compare those mandated benefits with the benefits that the employer may already provide to its employees as part of its paid time off or sick leave benefits. The Families First legislation will become effective no later than April 2, 2020.
For the foreseeable future, the employment law landscape will be deluged by the COVID-19 pandemic. The prudent employer will stay alert to guidance put forth by the CDC, the Wisconsin DHS, and the U.S. Department of Labor. Contact your Anderson O’Brien lawyer with any questions that you have concerning keeping your business afloat with a minimum of legal risk.