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State Governments and Federal Agencies Update Guidance Regarding Workplace Re-Opening

July 14, 2020


As employers contemplate returning employees to the workplace, they must navigate a patchwork of federal, state, and local laws, which are continuously evolving. Recently, various states have issued Travel Advisories that include recommended quarantine periods after travel to or from certain other states. The Occupational Safety and Health Administration (“OSHA”) and the Equal Employment Opportunity Commission (“EEOC”) issued guidance for businesses re-opening, which covers questions regarding safely re-opening the workplace, communications with employees, treatment of and accommodations for employees at a higher risk of COVID-19, and employees’ responsibilities for caregiving. This alert sets forth a brief overview of issues employers should be aware of prior to re-opening.

State-Specific Travel Advisories

Employers should also be aware that the Commonwealth of Pennsylvania, as well as Connecticut, New Jersey, and New York (jointly), recently issued Travel Advisories. In general, the states recommend that anyone traveling from states with significant community spread of COVID-19 quarantine for a period of 14 days from the time of last contact with the state. The different Advisories list the specific states that automatically trigger the 14-day quarantine. The Pennsylvania Advisory and joint advisory from NY, NJ, and CT appear to avoid stating that the quarantine period is “required.” We are aware, however, that many employers have incorporated the advisory into policies that would prevent an employee traveling to or from one of the affected states from reporting to the workplace for fourteen days after return. We do not believe that those employers’ requirements would trigger the paid leave provisions of the Families First Coronavirus Response Act (including paid leave for the two-week quarantine period), but the federal Department of Labor has not issued guidance specific to advisories like those from PA, NJ, NY, and CT.

OSHA

On June 18, 2020, OSHA released a Guidance on Returning to Work to assist employers and workers in safely returning to work and reopening non-essential businesses. OSHA noted that this guidance is intended to supplement the U.S. Department of Labor and U.S. Department of Health and Human Services’ previously developed Guidance on Preparing Workplaces for COVID-19 and the White House’s Guidelines for Opening up America Again.

OSHA’s Guidance sets forth a three-phase strategy for re-opening:

  • Phase 1: Businesses should consider telework when feasible, limit the number of people in the workplace, accommodate workers at higher risk of severe illness, and limit non-essential business travel.
  • Phase 2: Businesses should continue telework where feasible and continue to accommodate vulnerable workers. Businesses may begin to ease the limitation on the number of people in workplace, while still maintaining strict social distance practices. Non-essential business travel can resume.
  • Phase 3: Businesses can resume unrestricted staffing of worksites.

Additionally, OSHA provided the following “guiding principles” that employers’ reopening plans should address, along with examples of how to implement:

  • Hazard Assessment: including practices to determine when, where, how, and to what sources of SARS-CoV-2 workers are likely to be exposed in the course of their job duties.
  • Hygiene: including practices for hand hygiene, respiratory etiquette, and cleaning and disinfection.
  • Social Distancing: including practices for maximizing and maintaining distance between all people, including workers, customers, and visitors, to the extent feasible.
  • Identification and isolation of sick employees: including practices for worker self-monitoring or screening and isolating and excluding from the workplace any employees with signs or symptoms of COVID-19.
  • Return to work after illness or exposure: including after workers recover from COVID-19 or complete recommended self-quarantine after exposure to a person with COVID-19.
  • Controls: including engineering and administrative controls, safe work practices, and personal protective equipment (PPE) selected based on an employer’s hazard assessment.
  • Workplace flexibility: including considering remote work and sick leave.
  • Training: including practices for ensuring employees receive training on the signs, symptoms, and risk factors associated with COVID-19; where, how, and to what sources of SARS-CoV-2 employees might be exposed in the workplace; and how to prevent the spread of SARS-CoV-2 at work.
  • Anti-retaliation: including practices for ensuring that no adverse or retaliatory action is taken against an employee who adheres to OSHA guidelines or raises workplace safety and health concerns.

OSHA emphasized that these guiding principles and implementation examples are not an exhaustive list of controls that may be appropriate, necessary, or feasible and that not every example applies to every employer.

EEOC

The EEOC recently revised its Technical Assistance Questions and Answers to address issues such as antibody testing and employee flexibility in returning to the workplace. This updated guidance includes information related to the following:

Antibody Testing

In April, the EEOC explained that employers may administer COVID-19 tests before returning employees to the workplace.  On June 19, 2020, the EEOC clarified, however, that antibody testing is not permitted under the Americans with Disabilities Act (“ADA”).  The EEOC relied on the CDC’s guidance that antibody tests “should not be used to make decisions about returning persons to the workplace.”  Thus, the EEOC determined that antibody tests do not meet the ADA’s “job related and consistent with business necessity” requirement for medical exams.  Note that antibody testing is different from the viral test permitted by the EEOC because the viral test detects an active case of COVID-19.

Communications with Employees

The EEOC also provided suggestions to assist employers in determining whether employees may require flexibility when they return to the workplace.  Specifically, in advance of having employees return to the workplace, the EEOC notes that employers may communicate to all employees that there are ways for employees who are at higher risk of contracting COVID-19 to request flexibility in work arrangements.  The employer can either (1) provide all the CDC-listed medical conditions that may place people at higher risk, as well as instructions on who to contact to request flexibility or (2) send a general broad notice that it is willing to consider requests for accommodation or flexibilities on an individual basis.

Age and Pregnancy

Despite the higher risk of suffering complications from COVID-19, employers should be careful to avoid making any employment decisions on the basis of employees’ ages or due to pregnancy.  The EEOC’s updated guidance cautions that employers should not prevent older employees and pregnant employees from returning to work, even if the employer is doing so for benevolent reasons.

In addition, while employers are not legally obligated under the Age Discrimination in Employment Act (ADEA) to provide a reasonable accommodation for older workers due to age, the EEOC noted that employers are free to provide flexibility to workers age 65 or older.  Younger employees will not have grounds for an age discrimination complaint under ADEA. A pregnant employee may, however, qualify for a reasonable accommodation if the pregnancy-related medical condition constitutes a disability.

An employer must provide a pregnant employee with the same job modifications and flexibility that it provides to other similarly situated employees.  Prior to taking any steps to treat older workers differently than younger workers, however, employers should consult legal counsel as some states (including New Jersey and New York) prohibit discrimination on the basis of age, regardless of whether the employee is over or under 40.

Vulnerable Family Members

 The EEOC also confirmed that employees are not entitled to an accommodation simply to avoid exposing vulnerable family members to COVID-19.  The EEOC explained that ADA does not require that an employer accommodate an employee without a disability based on the disability-related needs of a family member or other person.  Of course, employers may choose to provide flexibility to employees who could possibly expose vulnerable family members, but employers should avoid disparate treatment of employees based on any protected characteristic.

Caregivers/Family Responsibilities

An employer may provide telework or modified schedules to employees with school-age children due to school closures.  The EEOC reminded employers, however, that employees cannot be treated differently based on sex or other EEO-protected characteristics.  Thus, employers may not provide more flexible arrangements to female employees based on assumptions regarding care-taking responsibilities.

If you have any questions or concerns regarding OSHA’s or EEOC’s latest guidelines or re-opening your workplace, the Labor and Employment attorneys at Montgomery McCracken are available to assist. Visit the firm’s Coronavirus (COVID-19) Resource Center for more information and updates on this constantly evolving situation.