Breaking down OSHA, EEOC, and ADA guidance on safely reopening the office.
By James E. Beyer
There’s been a wealth of information released by various government agencies in recent weeks regarding workplace safety and equal employment opportunity issues. In April, the Department of Labor’s Occupational Safety and Health Administration (OSHA) reminded employers of their legal obligations when facing employee concerns about workplace safety. Similarly, the U.S. Equal Employment Opportunity Commission (EEOC) has been continually updating guidance on its website in “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” How can employers navigate this evolving legal landscape and the potential land mines that stand in the way of a return to safe business operations?
As employees express concerns about the safety of returning to the office, organizations have a few options to help in the process. Under OSHA’s Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. On April 8, 2020, OSHA reminded employers that it is illegal to retaliate against workers “because they report unsafe and unhealthful working conditions” during the coronavirus pandemic. Acts of retaliation can include terminations, demotions, denials of overtime or promotion, or reductions in pay or hours. Employers may initially be interested in simply ending the employment of problematic employees who take issue with the employer’s approach to workplace safety, but the law makes it clear that employers cannot take adverse employment actions against employees who express genuine safety concerns.
Often, the simplest way to allay employee safety concerns is to educate them about the steps the organization is taking to provide a safe and healthy workplace. This could include communicating social distancing guidelines within the workplace, explaining what efforts the company is making to clean and disinfect an employee’s work space and other common areas, and detailing what types of safety measures are being taken after hours or behind the scenes (such as how air is ventilated and circulated). In instances when an employee refuses to come to work, causes a disruption in the workplace, or says something like, “There is nothing you can do that can make me feel safe,” employers should contact experienced legal counsel to navigate these potential tricky scenarios.
Employers should also have a plan and be able to swiftly execute that plan when facing reports of employees who have potentially been exposed to someone who has tested positive for COVID-19, or of employees who have tested positive themselves. The EEOC publication clarifies that under the Americans with Disabilities Act (ADA), an employer may not require antibody testing before permitting employees to reenter the workplace, but requiring a negative COVID-19 result is permissible.
Many organizations are choosing to screen employees, including temporary workers, immediately when arriving on-site. Employers have begun to take workers’ temperatures and ask them other health-related questions. But every HR professional knows that a one-size-fits-all approach rarely works. What happens if, for some reason, a worker requests an alternative method of screening because they have a specific medical condition?
The EEOC makes it clear that this would likely be a request for reasonable accommodation, and an employer should proceed as it would for any other request for accommodation under the ADA. If the requested change is inexpensive and easy to provide, the employer should generally voluntarily make it available to anyone who asks without having to go through an interactive process. Alternatively, if the disability is not obvious or previously known, employers have a legal obligation to engage in the interactive process, which simply means that employers have to talk to the employee to understand what his or her needs are. Employers can ask the employee for information to establish that the condition is a disability and what specific limitations require an accommodation. If necessary, employers may also request medical documentation to support the employee’s request, and then determine an effective accommodation that can be provided, absent undue hardship, to enable the employee to perform the essential function of his or her position.
Similarly, if an employee requests an alternative method of screening as a religious accommodation, employers would have to determine whether accommodation is available under Title VII of the Civil Rights Act of 1964, another federal anti-discrimination law, and any state law equivalents. But if an employee simply dislikes having their temperature taken and their request is not tied to a medical condition or religious reason, employers are not legally required to provide an accommodation.
James E. Beyer is associate counsel for the Aleron Group. Please note that the information provided in this article does not, and is not intended to, constitute legal advice.