Yes, we are all exhausted by the sheer amount of information we must process to move our lives and businesses forward in a safe and legal manner during this extraordinary time. Fortunately, we seem to be out of the “drinking from a firehose” portion of adaptation but change continues at a brisk pace. Both the Equal Employment Opportunity Commission (EEOC) and the Department of Labor (DOL) have issued multiple updates to their written guidance–some as a result of new information–and some as a result of court cases that are now starting to interpret and limit enforcement of COVID responsive legislation and regulations. Not every change or addition is necessarily critical to your everyday operations but keeping abreast of changes will help you as an employer to respond effectively and to adapt your response.
The EEOC’s technical assistance document “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” first issued March 17, 2020, was most recently updated on September 8, 2020 to answer newly developing questions and update prior responses on the subjects of medical examinations and testing, the confidentiality of medical information, disability-related inquiries and providing reasonable accommodations. For example, the updates make clear that during the pandemic employers may ask employees entering the workplace whether they have the virus, have symptoms of the virus, or have tested for the virus. Employer screening may also include temperature screening, a viral testing program that is consistent with CDC guidance, but may NOT use a test for COVID antibodies as a condition for working. Note that employees who are NOT in your workplace, such as employees who are exclusively teleworking should NOT be subjected to any of these inquiries or tests since they will not be coming into contact with other members of the workforce. The updates also note that employers should not ask employees whether they have been exposed to family members who have COVID–since inquiries as to family medical history are forbidden by the Genetic Information Nondiscrimination Act (GINA)–keep the inquiry generic by simply asking employees if they have had contact with anyone diagnosed with COVID or who may have symptoms of the disease. Also–keep the medical-related questions generic and ask all employees–unless you have some particular reason based on objective evidence that the employee may have the disease. The updates also provide helpful guidance on keeping employee medical information confidential as required by law–including keeping medical information separate from general employee files, limiting access to medical information and maintaining confidentiality of the identity of infected employees. Finally, the EEOC continues to urge employers to respond to the challenge of providing or augmenting reasonable accommodations under the Americans with Disabilities Act and the importance of continuing the interactive process with employees to be sure that employees can perform the essential functions of their jobs. Note that accommodations needed by an employee working from home may be different than those necessary in the live workplace.
The Department of Labor was charged with issuing regulations to implement the March 2020 emergency FFCRA legislation, including the emergency paid sick leave and emergency FMLA extension provisions. Those regulations were recently updated (effective September 16, 2020) as a result of the case New York v. Scalia (SDNY) which invalidated certain portions of the original regulations concerning work availability, prior approval for intermittent use of leave where appropriate, the definition of “health care provider,” and the requirement for employee documentation to be provided prior to taking leave. The DOL’s helpful document “Families First Coronavirus Response Act: Questions and Answers” has also been frequently updated, including recent updates (September 11, 2020) to address the invalidated portions of the regulations and the intricacies and challenges presented by the closure of schools and the implementation of distance learning programs for school-aged children. The DOL continues to emphasize the value of working cooperatively with employees to find creative yet effective solutions to the challenges of providing access to these leaves while tempering the effect on the workplace, such as adjustment of schedules, the use of telework or working out split schedules.
Keep in mind that all of this advice continues to be updated as more is known about the disease and also as the legislative and legal environment reacts. Both the EEOC and the DOL websites allow you to sign up for alerts as changes develop to these tools that they have created. What is on the horizon? We can reasonably expect more changes as the response matures, whether through new legislation, new tests, the availability of vaccines, and possibly even through a change in national leadership. Adaptation and flexibility are more important then ever and may be the difference between business failure and surviving–or even thriving–in the response era.
If you have questions about labor and employment issues, contact your DSV attorney or Melanie M. Dunajeski at firstname.lastname@example.org.
***The information contained on this website is for informational purposes and is not intended as formal legal advice and cannot be relied upon as such. No attorney client relationship is established or intended as a result of the information contained on this website.***