Breaking down OSHA, EEOC, and ADA guidance on safely reopeningÂ the office.
By James E. Beyer
Thereâs been a wealth of information released byÂ various government agencies in recent weeks regardingÂ workplace safety and equal employment opportunityÂ issues. In April, the Department of Laborâs OccupationalÂ Safety and Health Administration (OSHA) remindedÂ employers of their legal obligations when facingÂ employee concerns about workplace safety. Similarly,Â the U.S. Equal Employment Opportunity CommissionÂ (EEOC) has been continually updating guidance on itsÂ website in âWhat You Should Know About COVID-19Â and the ADA, the Rehabilitation Act, and Other EEOÂ Laws.â How can employers navigate this evolving legalÂ landscape and the potential land mines that stand inÂ the way of a return to safe business operations?
As employees express concerns about the safety ofÂ returning to the office, organizations have a fewÂ options to help in the process. Under OSHAâs Act ofÂ 1970, employers are responsible for providing safe andÂ healthful workplaces for their employees. On AprilÂ 8, 2020, OSHA reminded employers that it is illegalÂ to retaliate against workers âbecause they reportÂ unsafe and unhealthful working conditionsâ duringÂ the coronavirus pandemic. Acts of retaliation canÂ include terminations, demotions, denials of overtimeÂ or promotion, or reductions in pay or hours. EmployersÂ may initially be interested in simply ending theÂ employment of problematic employees who take issueÂ with the employerâs approach to workplace safety, butÂ the law makes it clear that employersÂ cannot take adverse employmentÂ actions against employeesÂ who express genuine safetyÂ concerns.
Often, the simplestÂ way to allay employeeÂ safety concerns isÂ to educate themÂ about the stepsÂ the organization isÂ taking to provideÂ a safe and healthyÂ workplace. This couldÂ include communicatingÂ social distancingÂ guidelines within theÂ workplace, explainingÂ what efforts the company isÂ making to clean and disinfectÂ an employeeâs work space andÂ other common areas, and detailingÂ what types of safety measures are beingÂ taken after hours or behind the scenes (such as howÂ air is ventilated and circulated). In instances when anÂ employee refuses to come to work, causes a disruptionÂ in the workplace, or says something like, âThere isÂ nothing you can do that can make me feel safe,âÂ employers should contact experienced legal counsel toÂ navigate these potential tricky scenarios.
Employers should also have a plan and be able to swiftlyÂ execute that plan when facing reports of employeesÂ who have potentially been exposed to someone whoÂ has tested positive for COVID-19, or of employees whoÂ have tested positive themselves. The EEOC publicationÂ clarifies that under the Americans with Disabilities ActÂ (ADA), an employer may not require antibody testingÂ before permitting employees to reenter the workplace,Â but requiring a negative COVID-19 result is permissible.
Many organizations are choosing to screen employees,Â including temporary workers, immediately whenÂ arriving on-site. Employers have begun to take workersâÂ temperatures and ask them other health-relatedÂ questions. But every HR professional knows that a one-size-fits-all approach rarely works. What happens if, forÂ some reason, a worker requests an alternative methodÂ of screening because they have a specific medicalÂ condition?
The EEOC makes it clear that this wouldÂ likely be a request for reasonableÂ accommodation, and anÂ employer should proceed as itÂ would for any other requestÂ for accommodation underÂ the ADA. If the requestedÂ change is inexpensiveÂ and easy to provide,Â the employer shouldÂ generally voluntarilyÂ make it availableÂ to anyone who asksÂ without having to goÂ through an interactiveÂ process. Alternatively, ifÂ the disability is not obviousÂ or previously known, employersÂ have a legal obligation to engageÂ in the interactive process, whichÂ simply means that employers have to talkÂ to the employee to understand what his or her needsÂ are. Employers can ask the employee for informationÂ to establish that the condition is a disability andÂ what specific limitations require an accommodation.Â If necessary, employers may also request medicalÂ documentation to support the employeeâs request,Â and then determine an effective accommodation thatÂ can be provided, absent undue hardship, to enable theÂ employee to perform the essential function of his or herÂ position.
Similarly, if an employee requests an alternative methodÂ of screening as a religious accommodation, employersÂ would have to determine whether accommodation isÂ available under Title VII of the Civil Rights Act of 1964,Â another federal anti-discrimination law, and any stateÂ law equivalents. But if an employee simply dislikesÂ having their temperature taken and their request isÂ not tied to a medical condition or religious reason,Â employers are not legally required to provide anÂ accommodation.
James E. Beyer is associate counsel for the Aleron Group. PleaseÂ note that the information provided in this article does not, and is notÂ intended to, constitute legal advice.