Rule 5: Yes, My Employer Can Do That: Balancing employers’ rights and responsibilities with employee privacy – Return to Work in the Time of COVID-19
Part 5 of a series featuring our video Rules of the Road: Return to Work in the Time of COVID-19.
By now, those who have been following this series know the basics. You’ve formulated (or are in the process of formulating) a “return to work” plan, which includes, among other things, implementing policies and guidelines consistent with CDC recommendations (wear masks), as well as other best practices that most of us learned, or should have learned, by the time we were potty-trained (wash your hands), if not by the time we were in elementary school (no touching).
But once businesses reopen their doors to employees, and in some cases, customers and clients, they will inevitably find themselves standing at the proverbial crossroads.
The challenge is that while the world adjusts to the “new normal,” of mandated and recommended health safeguarding measures to stop the spread of COVID-19, employers can’t throw the “old normal” out the window when it comes to navigating issues involving employee health and privacy rights. Employers have spent the past three decades acclimating to and developing policies to comply with the “old normal,” such as the Americans with Disabilities Act of 1990 (ADA) and the Rehabilitation Act (which include the requirement for reasonable accommodation and non-discrimination based on disability, and rules about employer medical examinations and inquiries), the Family and Medical Leave Act of 1993 (FMLA), the Genetic Information Nondiscrimination Act (GINA), and other federal and state anti-discrimination and health privacy laws.
Enter COVID-19, a highly contagious and potentially fatal virus that disproportionately impacts persons, and particularly older adults, with preexisting conditions and weakened immune systems. For employees, the virus’ potential to rapidly spread through the workplace and into their homes has understandably incited heightened levels of health-related anxiety and fear about returning to the workplace. Meanwhile, businesses are navigating their own set of anxieties as they perceive the virus as presenting somewhat of a Sophie’s choice in the context of employee relations – i.e., a choice between, on the one hand, prioritizing employee safety by implementing policies that may be perceived to invade employees’ privacy rights, while on the other hand, holding sacred the privacy rights of their workforce to the potential detriment of the health of employees and their loved ones.
Fortunately, balancing employee health concerns and privacy rights is not a mutually exclusive exercise in the context of COVID-19, and the EEOC has published materials to help employees navigate these uncertain times.
In fact, the EEOC has explicitly advised that while the ADA, the Rehabilitation Act, Title VII of the Civil Rights Act (which prohibits discrimination based on race, color, national origin, religion, and sex, including pregnancy), the Age Discrimination in Employment Act (which prohibits discrimination based on age, 40 or older), and GINA continue to apply during the time of the COVID-19 pandemic, they do not interfere with or prevent employers from following the guidelines and suggestions of the CDC and state/local public health authorities about steps employers should take in responding to COVID-19.
Below is a non-exhaustive list of things employers can do to help ensure the safety of their employees and reminders of steps they can take to protect employee privacy and to mitigate exposure to potential litigation that may arise in this brave new world.
Disability-Related Inquiries and Medical Exams
Employers Can and Should Ask Employees If They’re Exhibiting Signs of COVID-19
During the pandemic, ADA-covered employers can and should ask employees who call in sick if they are experiencing symptoms of COVID-19 such as fever, chills, cough, shortness of breath, or sore throat). In determining the scope of permissible symptom-based inquiries, employers should rely on the CDC, other public health authorities, and reputable medical sources for guidance on emerging symptoms associated with the disease. For example, some may be surprised to learn about one of the less publicized symptoms of the virus, COVID toes.
Taking Employees’ Body Temperatures During COVID-19 Is Permissible
Generally, measuring an employee’s body temperature is considered a medical examination that brings with it significant restrictions and limitations on employers. However, because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers (or office complexes) are permitted to measure employees’ body temperature, provided protocols for storing medical data, as discussed in below regarding “Confidentiality of Medical Information.”
Employers Can and Should Instruct Employees Showing Symptoms of COVID-19 to Stay Home, Require Employees Demonstrate Their Fitness To Return To Work, and Follow Applicable Health Guidelines
While some employees presenting symptoms of COVID-19 may feel pressured to work due to financial constraints and other considerations, the risks associated with allowing these employees to come to work or remain are hard to justify from a business or health perspective. As such, employers should inform their employees that they will be sent home if they exhibit symptoms of the virus. Moreover, employers should require employees to present a doctor’s note or other form of verification of fitness to return to the workplace before allowing employees, who have reported showing symptoms of the virus, to return to work. Employees may be entitled to leave (paid or otherwise) under applicable federal and state law which encourages those who are sick to stay home.
Similarly, employers may administer a COVID-19 test to employees before permitting them to enter the workplace, so long as the test is “job related and consistent with business necessity.” Thus, if a potentially infected employee would pose a direct threat to the health of others, under the ADA, an employer may require the employee to be tested. In contrast, since the CDC’s Interim Guidelines provide that antibody test results “should not be used to make decisions about returning persons to the workplace,” requiring that test would not be a permissible medical examination under the ADA.
Employers should nevertheless be mindful that a negative COVID-19 test result does not mean that the employee will not become contagious in the future. Thus, even with testing, it will remain important for employers to observe and enforce infection control practices (such as social distancing, regular handwashing) to prevent transmission of COVID-19, as discussed in the prior blogs in this series.
Confidentiality of Medical Information – Disclosing Potential Exposure
The ADA requires that medical information about an employee be stored separately from the employee’s personnel file to limit access to this confidential information. Therefore, any COVID-19 related medical information that employers obtain (either directly or through documentation furnished by an employee), should be stored in the existing location where employers maintain employee medical files. This would include an employee’s statement that they have the disease or suspects they have the disease, the employer’s notes or other documentation from questioning an employee about symptoms, and data collected during ADA-permissible medical examinations.
While the names of employees with COVID should generally not be disclosed to other employees (beyond those conducting contact tracing as may be required), employers may disclose the name of an employee to a public health agency when it learns that the employee has tested positive for COVID-19.
Further, an employer should notify employees who may have been exposed to the virus by one of their co-workers. Such notifications, however, should not disclose the name of their infected co-worker unless that individual has provided explicit consent to do so. Similarly, a staffing agency or contractor may disclose the name of an employee that has COVID-19 to the company where the employee has been assigned to work. This presents a unique challenge, since most employers cannot account for the physical whereabouts of every one of their employees throughout the course of the workday. Thus, to protect employee privacy while simultaneously preventing the spread of the virus, employers should provide co-workers with sufficient information will assist in determining their risk of exposure, such as, the floor, office, or team on which the COVID-19 positive employee works and the general time periods during which the individual may have been present in any given location, even if co-workers might be able to deduce the identity of the infected employee from the information.
Contact Tracing and Other Electronic Aids
Employers may also choose to invest in one of the many contract-tracing apps that have emerged in the market since the pandemic’s outbreak. Most of these apps use Bluetooth technology to detect when an employee comes within six feet of one of their coworkers.
The benefit of these apps is that they allow employers to identify members of their workforce who may have been exposed to the virus without the need for publicizing information that allows coworkers to speculate about which of their colleagues may have been infected with the virus. Additionally, these apps ensure that employers can quickly identify potentially exposed individuals and take appropriate precautions to prevent disruptions in their workforce.
Employers that elect to implement apps or other electronic aids to track employee movement, should, however, ensure that these e-tools can be turned off during non-working hours. Indeed, outside the context of professional sports with negotiated Collective Bargaining Agreements, most employers do not have the right to know whether Lou from accounting had a late night hankering for some chicken wings.
Hiring and Onboarding
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. Similarly, employers may take an applicant’s temperature as part of a post-offer, pre-employment medical exam, and may delay or withdraw a job offer if a prospective employee tests positive for, or exhibits symptoms of COVID-19.
An employer may not, however, withdraw a job offer or postpone an employee’s start date simply because the employee faces a heightened risk if exposed to COVID-19 (e.g., persons 65 or older, pregnant women, or persons with preexisting medical conditions). If an employer wishes to address these risks, they may explore alternative work arrangements such as telework or allowing an employee to voluntarily postpone their start date.
Minimizing Exposure: COVID Acknowledgment Forms vs. COVID Releases
While employers may be tempted to require employees to sign a release of all COVID-19 related claims upon returning to work, such a release is unlikely to stand up in court. Generally, workers cannot prospectively waive their rights against employers. Even if they could, worker’s compensation laws in most states prohibit employees from waiving claims arising from job-related illnesses and injuries.
A better approach is to require employees to sign an acknowledgment form upon returning to work acknowledging that: (1) the company is undertaking best efforts to protect its staff; (2) the company has implemented specific safety procedures and guidelines in response to COVID-19; and (3) she or he will abide by the company’s guidelines. Employers may also choose to include disclosures regarding the privacy issues addressed above, including how it will protect employee health-related information or data.
Of course, for the form to have any value for purposes of defending against future COVID-19 litigation, the guidelines should be tailored to the needs of the specific workplace and consistent with all applicable health guidelines. The guidelines must also be enforced. This means disciplining employees who fail to comply with the employer’s policies, escalating discipline for repeat wrong-doers, and if necessary, terminating any incorrigible offenders (sorry anti-maskers).
An acknowledgment form also brings with it a host of other benefits. In addition to helping to make workers feel safer and decreasing their anxiety surrounding the return to work, it sets clear expectations for both parties. It also provides an opportunity for employees with certain medical conditions to initiate a meeting to discuss reasonable accommodations that may be impacted by the company’s guidelines, or alternatively and employers to consider whether any existing accommodations need to be revisited.
While most employees appreciate their employer’s efforts to keep them safe as they resume working activities during the pandemic, the economic impact of the pandemic creates credible concerns that unscrupulous and opportunistic attorney’s from the plaintiff’s bar will seek to capitalize on employers’ well-intentioned but arguably non-compliant responses to COVID-19.
For this reason, the “stay safe” mantra of 2020, takes on a whole new meaning for employers welcoming employees back to work. Now more than ever, it is important to consult with legal counsel before implementing new policies implicating employee health and safety, and to maintain ongoing communications with your counsel (and keep up with our blog) to stay apprised of this constantly evolving legal landscape.