How Employers Can Navigate Workplace Issues Created by COVID-19

The Department of Labor (DOL) and the Equal Employment Opportunity Commission (EEOC) have released new advice for employers on how to navigate the serious employment issues created by the COVID-19 pandemic. The updated EEOC guidance addresses matters such as screening employees entering the workplace and pandemic-related workplace harassment. The DOL’s latest updates include Enforcement Guidance from the Occupational Safety and Health Administration as to recording cases of COVID-19 as an occupational illness, as well as federal guidelines for programs meant to supplement existing unemployment benefits.

The high points of these publications are summarized below.

EEOC Updated Guidance

• When screening employees entering the workplace, employers may ask about symptoms identified by the CDC, other public health authorities and reputable medical sources. Additional symptoms beyond fever and cough may include a new loss of smell or taste and gastrointestinal problems.
• The ADA requires that an employee’s medical information be stored separately from the employee’s personnel file. However, medical information related to COVID-19 may be stored in existing medical files.
• Employers may keep a database if they elect to measure an employee’s body temperature before he or she enters the workplace, but the employer must protect this information.
• Despite confidentiality requirements in the workplace, employers may disclose the names of employees confirmed to have COVID-19 with public health agencies.
• Employers may not postpone the start date or withdraw a job offer for a person at a higher risk of contracting COVID-19, including pregnant women and those aged 65 or older.
• Employers should be flexible in determining if a reasonable accommodation is available for individuals who are at a higher risk of contracting COVID-19 due to a pre-existing condition. Temporary job restructuring of marginal duties, temporary transfers to a different position or modifying a work schedule or shift assignment may permit an individual with a disability to safely perform the essential functions of the job while reducing exposure to others in the workplace.
• If any employee has a pre-existing mental condition or disorder that has been affected by the pandemic, employers may explore reasonable accommodations to assist the employee’s needs.
• Employers do not need to put off requests for accommodation, even if that accommodation will not be needed until the employee returns to the workplace when mandatory telework ends.
• An employee who was already receiving a reasonable accommodation before the COVID-19 pandemic may be entitled to additional or altered accommodations, absent undue hardship.
• Employers should reduce the chance of pandemic-related harassment by explicitly telling employees that fear of COVID-19 should not be misdirected against individuals because of a protected characteristic, including national origin, race or other prohibited bases. The EEOC has provided anti-harassment policy tips for small businesses and checklists for employers who want to reduce and address harassment in the workplace—both of which are available within the EEOC’s current COVID-19 guidance.
• Special rules apply when an employer is offering employees severance packages in exchange for a general release of all discrimination claims against the employer. More information is available in EEOC’s technical assistance document on severance agreements.

DOL Memo on Reporting Cases of COVID-19

Under OSHA’s recordkeeping requirements, COVID-19 is a recordable illness. Employers are responsible for recording individual cases if (1) the case is a confirmed case of COVID-19, (2) the case is work-related (as defined by 29 C.F.R. § 1904.5) and (3) the case involved one or more of the general recording criteria set forth in 29 C.F.R. § 1904.7.

Because the extent of transmission is a rapidly evolving issue, certain employers may have difficulty determining whether workers who contracted COVID-19 did so due to workplace exposure. In light of those difficulties, employers outside the health care industry, emergency response organizations and correctional institutions do not need to make work-relatedness determinations in cases of COVID-19 unless (1) there is objective evidence that a COVID-19 case may be work-related and (2) the evidence was reasonably available to the employer. This guidance (i.e., the suspension of work-relatedness determinations) is time-limited to the current public health crisis.

DOL Memo on Pandemic-Related Unemployment Compensation Programs

The Coronavirus Aid, Relief, and Economic Security Act (CARES) includes the Pandemic Emergency Unemployment Compensation (PEUC) Program, which allows states to provide up to 13 weeks of federally funded benefits to qualified individuals. An employee is qualified if he or she:

• has exhausted all rights to regular compensation under state and federal law with respect to the benefit year that ended on or after July 1, 2019
• has no rights to regular compensation for a week under any other state or federal unemployment compensation law, or to compensation under any other federal law
• is not receiving compensation for a week under the unemployment compensation law of Canada
• can work, is available to work and is actively seeking work

The guidance requires states to be flexible on the “actively seeking work” requirement, considering COVID-19 impacts and constraints.

Also, Federal Pandemic Unemployment Compensation (FPUC) allows states to administer an additional $600 weekly payment to certain eligible individuals who are receiving other benefits.

Finally, the Pandemic Unemployment Assistance Program (PUA) assists individuals who do not qualify for regular unemployment compensation and are unable to continue working as a result of the coronavirus, including self-employed workers, independent contractors and gig workers.

Please contact Phelps’ Labor and Employment team if you have any questions or need compliance advice and guidance.