Its not just a matter of “When?” but also “How?”.
As we see different nations lower their “stay at home’ and quarantine restrictions and as we see our local cases reach a plateau, the first and most obvious question is “When do we all return to our offices?”. That is an important question to ask and many companies have begun tackling that query. But many organizations have not even started to think about how that will look. Many issues such as workplace proximity, sanitation protocols, and return to work initial screenings must be addressed.
What can your business do to prepare for this date?
There are a number of things a business can do to prepare itself for the eventual return of their workforce.
- Communications – Begin communicating with employees about any new protocols as they relate to protection against COVID-19 in the workplace. Educational material such as posters and banners placed throughout the business can reinforce any digital communications regarding these protocols.
- Workplace reconfiguration – In places of business that currently have employees working within 10 feet of each other, whether it be an office cubicle or a factory floor, businesses can reconfigure office space and machines to maximize the space between employees. This may be a difficult and costly task, but the long-term savings from the reduction of illness due to any infectious disease will far outweigh the initial cost of reconfiguration.
- Sanitation accessibility and protocol – A business can place antibacterial foam or gel stations in areas of the office that transition from solitary work to places of gathering. Examples would be outside of a cafeteria or outside of a conference room. Additionally, a business can ask that their janitorial team or contractor start utilizing antibacterial wipes and sprays for end of day cleanings.
- Initial return to work screenings – An organization may want to make sure that an employee does not return to work with an active COVID -19 infection. A company can utilize temperature readings and/or antibody testing to accomplish this goal. The details for implementation of these types of screenings are in the bullet point material below.
What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws
Employers have a duty under the Occupational Safety and Health Act to make sure they provide a safe workplace. But it will be hard for an employee, client or customer to prove they were exposed to COVID-19 at the workplace, rather than the dry cleaner or grocery store.
In addition to certain industries reopening before others, companies will also likely introduce employees slowly back to the workplace, rather than bringing everyone back at once. A gradual return would help maintain social distancing in early days and would also give companies time to require employees to fill out health assessments or get tested, he said. The U.S. Equal Employment Opportunity Commission issued guidance in mid-March, saying it’s legal for companies to ask employees if they have symptoms of COVID-19, such as a cough or shortness of breath, and take their temperature.
Technical Assistance Questions and Answers – Updated on April 9, 2020
- All EEOC materials related to COVID-19 are collected at www.eeoc.gov/coronavirus.
- The EEOC enforces workplace anti-discrimination laws, including the Americans with Disabilities Act (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), 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 the Genetic Information Nondiscrimination Act.
- The EEO laws, including the ADA and Rehabilitation Act, continue to apply during the time of the COVID-19 pandemic, but they do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state/local public health authorities about steps employers should take regarding COVID-19. Employers should remember that guidance from public health authorities is likely to change as the COVID-19 pandemic evolves. Therefore, employers should continue to follow the most current information on maintaining workplace safety.
- The EEOC has provided guidance (a publication entitled Pandemic Preparedness in the Workplace and the Americans With Disabilities Act [PDF version]), consistent with these workplace protections and rules, that can help employers implement strategies to navigate the impact of COVID-19 in the workplace. This pandemic publication, which was written during the prior H1N1 outbreak, is still relevant today and identifies established ADA and Rehabilitation Act principles to answer questions frequently asked about the workplace during a pandemic. It has been updated as of March 19, 2020 to address examples and information regarding COVID-19; the new 2020 information appears in bold.
- The World Health Organization (WHO) has declared COVID-19 to be an international pandemic. The EEOC pandemic publication includes a separate section that answers common employer questions about what to do after a pandemic has been declared. Applying these principles to the COVID-19 pandemic, the following may be useful:
A. Disability-Related Inquiries and Medical Exams
During a pandemic, ADA-covered employers may ask such employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.
A.2. When screening employees entering the workplace during this time, may an employer only ask employees about the COVID-19 symptoms EEOC has identified as examples, or may it ask about any symptoms identified by public health authorities as associated with COVID-19? (4/9/20)
As public health authorities and doctors learn more about COVID-19, they may expand the list of associated symptoms. Employers should rely on the CDC, other public health authorities, and reputable medical sources for guidance on emerging symptoms associated with the disease. These sources may guide employers when choosing questions to ask employees to determine whether they would pose a direct threat to health in the workplace. For example, additional symptoms beyond fever or cough may include new loss of smell or taste as well as gastrointestinal problems, such as nausea, diarrhea, and vomiting.
Generally, measuring an employee’s body temperature is a medical examination. Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees’ body temperature. However, employers should be aware that some people with COVID-19 do not have a fever.
Yes. The CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace. The ADA does not interfere with employers following this advice.
Yes. Such inquiries are permitted under the ADA either because they would not be disability-related or, if the pandemic were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees. As a practical matter, however, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus.
B. Confidentiality of Medical Information
B.1. May an employer store in existing medical files information it obtains related to COVID-19, including the results of taking an employee’s temperature or the employee’s self-identification as having this disease, or must the employer create a new medical file system solely for this information? (4/9/20)
The ADA requires that all medical information about a particular employee be stored separately from the employee’s personnel file, thus limiting access to this confidential information. An employer may store all medical information related to COVID-19 in existing medical files. This includes an employee’s statement that he has the disease or suspects he has the disease, or the employer’s notes or other documentation from questioning an employee about symptoms.
B.2. If an employer requires all employees to have a daily temperature check before entering the workplace, may the employer maintain a log of the results? (4/9/20)
Yes. The employer needs to maintain the confidentiality of this information.
B.3. May an employer disclose the name of an employee to a public health agency when it learns that the employee has COVID-19? (4/9/20)
B.4. May a temporary staffing agency or a contractor that places an employee in an employer’s workplace notify the employer if it learns the employee has COVID-19? (4/9/20)
Yes. The staffing agency or contractor may notify the employer and disclose the name of the employee, because the employer may need to determine if this employee had contact with anyone in the workplace.