As New York and the rest of the country are entering different phases of reopening business, here are some of the answers to top questions we have heard from speaking with our clients.
1. Does the company have the right to ask about my health history and take my temperature?
Employers are allowed to ask about coronavirus-related symptoms and take the temperatures of employees under guidance from the Equal Employment Opportunity Commission (EEOC).
If temperature-taking at the workplace is the organization’s new policy, the time spent being tested and waiting for a test is considered part of the workday, and the process should be well thought out to eliminate crowding.
2. Will everyone wear a mask? Do I have to wear one?
Following the Centers for Disease Control and Prevention’s guidelines, individuals should wear face masks to slow the spread of the virus. Many employers are making face coverings part of the work uniform, especially for jobs that require physical proximity. Employers are required to provide for the masks and other protective equipment, depending on the nature of the work.
3. What happens if an employee or if someone in an employee’s family gets sick? Will employees get paid for time off?
Employers need to understand state and federal sick laws fully. The Families First Coronavirus Response Act (FFCRA), which provides paid sick leave for people affected by COVID-19, as well as paid emergency family leave, can provide paid time off for most employees.
Employers should make changes in their existing leave policy to accommodate such requests.
4. What social distancing protocols should employers follow?
As offices reopen, employers will comply with federal, state, and local directives on social distancing. Employers may need to consider staggering work hours and alternating days of work for different groups, shifts, or teams of employees to reduce the number of employees on site. Employers may want to:
Evaluate layouts of working space and consider making sure hallways and stairs have one way marked with arrows if social distancing guidelines cannot be met.
Use plexiglass shields or other barriers to minimize distances in the workplace, as recommended by the EEOC.
Develop protocols to avoid crowding in elevators.
Close or modify certain common areas, such as lunchrooms, time clock stations, and workplace fitness centers, so that employees can socially distance as per OSHA guidelines.
Provide additional sharing equipment and supplies before beginning to bring employees back onsite to avoid gathering in one place.
5. What policies need to be updated as employees return to work?
Employers should consider whether their existing policies need modification to ensure compliance with all newly enacted laws. Remote and telework policies may also need to be reviewed or added. Employers might consider a COVID related handbook for all employees.
This handbook should have detailed policies on what to do when an employee becomes symptomatic, tests positive, or is potentially exposed to COVID-19. The policy should inform employees of the measures taken to ensure employee safety, regarding containment measures such as mandatory temperature monitoring, hand washing, and face mask usage also need to be implemented and provided to employees prior to their return to work when possible.
Employers should also proactively suggest new forms of greeting each other to avoid handshaking, hugs, back slaps, and other forms of physical contact in which people may engage out of longstanding habit. Offer non-contact ideas such as hand waves or other such gestures that signal positivity without touching each other.
Materials should be easy to understand and available in the appropriate language and literacy level for all workers. These should be posted around the office space to remind employees of the rules in place. The posters are available on the EEOC website.
6. What if an employee has a temperature or otherwise presents COVID-19 symptoms?
If an employee has a temperature, it is best to confirm a heightened temperature with a second test, in a confidential manner, and to consider any explanation the employee may offer for a heightened temperature. It is reasonable to send an employee home who has an elevated temperature (100.4 degrees Fahrenheit or higher). According to current CDC guidance, an individual who has COVID-19, or symptoms associated with it, should not be in the workplace. If, however, an employee is sent home, the employer should consider how the absence is treated under its sick-leave/PTO policy, employee entitlements to wages for the day, and employee entitlements to any other leave, such as under the Families First Coronavirus Relief Act, or other applicable federal, state, or local law.
7. If and when a vaccine for COVID-19 is available, can employers require vaccination?
Typically, some exceptions could prevent employers from requiring a vaccine. Of course, given the current pandemic, this may be an area of the law where we see change. Given the fluidity of the COVID-19 pandemic, it is prudent to await further guidance from the government on this issue once (and if) a vaccine becomes available.
8. When hiring, may employers screen applicants for COVID-19?
According to the EEOC, yes. An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job.
9. May an employer take an applicant’s temperature as part of a post-offer, pre-employment medical exam?
According to the EEOC, yes. Post-offer, pre-employment medical exams, which would include temperature taking, are permitted after an employer has made a conditional offer of employment.
10. Given remote work, how can I-9s be validated?
There has been a relaxation of in-person I-9 document review, with limitations. Employers with employees working remotely due to COVID-19 will not be required to review the employee’s identity and employment authorization documents in the employee’s physical presence. However, employers must inspect the Section 2 documents remotely (e.g., over a video link, fax or email, etc.) and obtain, inspect, and retain copies of the documents within three business days for purposes of completing Section 2. Employers also should enter “COVID-19” as the reason for the physical inspection delay in Section 2 “Additional Information” field once physical inspection takes place after normal operations resume. For a closer look at I-9 validation during COVID-19.
11. What if an employee refuses to report to work because they object to taking public transportation, live in, or must travel to work and have other such COVID-19-related concerns?
If an employee believes he or she is in imminent danger, according to OSHA, that employee can refuse to work based on a specific fear of infection (based on fact), where the employer cannot address the employee’s specific fear. An employer may consider whether the employee can work remotely, or may qualify for an accommodation under the ADA due to being immune-compromised, or whether the fear can be adequately addressed by taking additional containment measures at the facility.
Employers can also allow employees to take paid time off but may want to consider the following PTO policies to help ensure a sufficient workforce. Additionally, employers may want to offer hesitant employees unpaid leave.
Additionally, employees who are told to self-quarantine by a health care provider or governmental authority because of vulnerability to COVID-19 may be entitled to certain federal, state, or local leave benefits.
12. Where must employers store onsite medical examination results?
The ADA requires that all medical information, including temperature check results, be stored separately from the employee’s personnel file. Employers may choose to store COVID-19-related medical files with other medical files, or in a separate location, as long as these files are separate from employee personnel files and adequately secured to protect the privacy of the data. These files need to be stored for three years (the timeline is still being discussed by EEOC)
13. What should employers who lease, or share their space with other organizations, discuss with their landlords?
Employers should inquire about any health screenings that landlords may be conducting as a condition of allowing individuals to enter the building. Employers should also discuss sanitation measures that will be in place for common areas as well as logistics, such as social distancing measures on elevators and in common stairwells and lobbies.