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Ensure your company is prepared for a COVID-19 surge this winter.
 

COVID-19 is on the fast track to more cases than we have seen since the peak of COVID-19. Now is the time to prepare.

The US government just approved updated COVID-19 vaccines and advised that effectively every American should receive one. Some local businesses have reinstituted mask mandates, while others wonder if they should mandate testing for sick employees. Amidst all these changes, many employers are left wondering: what are my rights to protect my employees, myself, and my business?

Below is a discussion of the most common questions we receive about COVID-19 from our clients.
 

The EEOC’s position should cover most employers who want to test an employee with COVID-19 symptoms. Additionally, this guidance may support mandatory testing during COVID-19 surges regardless of symptoms. Check with skilled counsel as these standards will likely develop (and possibly change) as winter approaches. Please note, this does not include antibody testing, which is not permissible. 

However, just because you can legally do it does not mean you should. There are various factors employers should consider before implementing a testing policy:

• Current CDC recommendations (which currently do not require testing);
• The likelihood your workplace will allow COVID-19 to quickly spread among employees, customers, vendors, etc.;
• Employee response to mandatory testing;
• Availability of COVID-19 tests;
• Government requirements for isolation upon a positive COVID-19 test; and
• Equal application of the policy to all employees, including managers and key employees.

GINA, however, does not prohibit an employer from asking employees whether they have had contact with “anyone” diagnosed with COVID-19 or who may have symptoms associated with the disease. Moreover, from a public health perspective, only asking about an employee’s contact with family members would limit the information obtained about an employee’s potential exposure to COVID-19 and thus should be avoided.

However, it may be permissible for employers to use a company-wide mask mandate in certain circumstances. Most obviously, where CDC guidance changes, employers can follow suit. Additionally, it may be appropriate to issue a mask mandate during COVID-19 surges, especially in medical facilities and other workplaces where COVID-19 could easily spread. For example, a few hospitals and medical facilities in California issued mask mandates during a COVID-19 surge earlier this fall.

Non-exempt, hourly employees can be required to use sick time in hourly increments. In other words, if an employee is scheduled to work for 8 hours and that employee works 5 hours, you can deduct 3 hours of PTO from the non-exempt employee’s pay. If the non-exempt employee does not have any accumulated PTO, they do not need to be compensated for their time off.

Exempt, salaried employees can also be required to use their sick time. However, in contrast to their non-exempt counterparts, exempt employees can only have their PTO reduced in whole day increments. If the exempt employee is slotted to work 8 hours and only works 3 hours, the exempt employee must be paid for the full day.  

Employers should double check that in their state mandating the use of sick time does not violate state specific sick-leave requirements. Some state specific sick leave laws may not allow employers to mandate employees use sick time; if this is the case in your state, you can mandate the use of sick time so long as it is over and beyond the state legally mandated amount.

The ADA does not interfere with a designated representative of the employer interviewing the infected employee to get a list of people with whom the employee possibly had contact at work, so that the employer can then take action to notify those who may have come into contact with the employee, without revealing the employee’s identity. For example, using a generic descriptor, such as telling employees that “someone at this location” or “someone on the fourth floor” has COVID-19, provides notice and does not violate the ADA’s prohibition of disclosure of confidential medical information.

For small employers, coworkers might be able to surmise who the employee is, but such employers still have the right to make this limited disclosure.   Also, all employer officials who are designated as needing to know the identity of an infected employee should be specifically instructed that they must maintain the confidentiality of this information.

As it relates to COVID-19, there are many accommodations that could be requested. They can generally be divided into three main categories:

1. The employee is requesting an accommodation for their COVID-19 illness;
2. The employee is requesting an accommodation for a non-COVID-19 disability because of a COVID-19 surge; and
3. The employee is requesting an accommodation for their family member.

 
An employee requests an accommodation for their COVID-19 illness:

Employees requesting accommodations for their own COVID-19 related illness are likely not able to take advantage of the formal accommodation process under the ADA because COVID-19 is typically not considered a disability. Nonetheless, COVID-19 may occasionally rise to the level of a disability if the employee’s medical condition or any of their symptoms is a “physical or mental” impairment that “substantially limits one or more major life activities.” The EEOC advises that:
 

In contrast, Long COVID is likely a disability under the ADA. Long COVID (or long-haul COVID) is a group of health problems persisting or developing after an initial COVID-19 infection. Symptoms can last weeks, months or years and are often debilitating. Long COVID is considered a disability under the ADA and, therefore, requires formal accommodations under the ADA.
Employees requesting accommodations for Long COVID should be treated as any other qualified employee requesting accommodations.
 
An employee requesting accommodations for a non-COVID disability because of a COVID-19 surge:

Employees with disabilities may request accommodations because they have a non-COVID related disability that makes them more vulnerable to COVID-19 or makes the recommended preventive steps (such as masks) untenable for medical reasons. For example, employees undergoing chemo may request an accommodation during a surge because the chemotherapy makes them more susceptible to serious sickness. Individuals with an otherwise eligible disability can request accommodations in this scenario.
 
An employee is requesting accommodations for a family member:

The ADA prohibits discrimination based on association with an individual with a disability. This protection is limited to disparate treatment or harassment claims. The ADA does not require an employer to accommodate an employee without a disability based on the disability-related needs of a family member or other person with whom the employee is associated. So, if an employee requests an accommodation because a family member is very susceptible to COVID-19, the employer has no obligation to grant that request.

• Sign up for Email Updates from the CDC so you are up to date on all of the CDC’s COVID-19 recommendations;
• Update your company handbook so it includes provisions on mandated use of PTO time and other COVID-19 related policies;
• Discuss with your management team how you want to handle issues around COVID-19 isolation, work from home, and mandated sick time policies;
• Know state and local laws, emergency orders, and ordinances relating to COVID-19; and
• Sign up for legal updates (such as the Brody and Associates Monthly Legal Update) that will help keep you abreast of these developments.