0820_AUG Comstock's Magazine 0820 August | Page 17

essential travel only and define it, and
add nonessential travel gradually.
• Define customer and visitor contact
protocols such as directing customer
traffic through the workplace, limit the
number of customers in each area, use
video or audio conferencing for client
meetings, and provide contactless
pickup and delivery.
What you can and cannot do
In response to community spread of
COVID-19, the Equal Employment Opportunity
Commission has confirmed how
employers can avoid running afoul of the
Americans with Disabilities Act (remember
that all results should be confidential).
• You can take employees’ temperatures
at work. Temperature checks
should be reliable, performed consistently
and respect employees’ privacy.
All employees entering facilities
should be checked only by trained
personnel.
• You can ask employees if they have
tested positive for or been diagnosed
with COVID-19; if they have symptoms,
such as a fever of 100.4 degrees
or higher, cough, shortness of breath,
sore throat, or loss of taste or smell; if
they have had close contact with any
person who has been diagnosed with
COVID-19 in the past 14 days; if they
have been asked to self-quarantine by
a health official within the past 14 days;
and if they have traveled to a country
under a Centers for Disease Control
and Prevention Level 3 health notice.
• You cannot ask an employee if they
have any underlying health condition
that would make them more
vulnerable if infected by COVID-19. It
would be a violation of their privacy.
If you do ask such a question, any
employment decision you later make
about that employee could be scrutinized
as potentially discriminatory,
based on the employee’s perceived or
actual disability.
• You can advise employees to stay home
(or leave work) if they become ill with
symptoms of COVID-19. You may
require employees to provide a doctor’s
note stating they are fit for duty once
they return.
• You can screen job applicants for
symptoms of COVID-19 after making
a conditional job offer, as long as it is
done for all entering employees in the
same type of job. You also can withdraw
a job offer when the employer
needs the applicant to start immediately
but the individual tests positive
for COVID-19 or has symptoms of it.
Consider policy changes
• Adjust paid-leave policies to reflect
new requirements and actual business
needs.
• Relax attendance policies to encourage
sick employees to stay home and
address potential increased child care
obligations.
• Time-off request procedures should
indicate when time off can be required
by the employer if sick employees need
to be sent home.
• Adopt flexible scheduling options that
allow for compressed workweeks and
flexible start and stop times.
• Adjust meal and rest break policies to
stagger times.
• Adopt telecommuting policies that
reflect work that may be done remotely
and procedures for requesting
telework.
• Revise information technology policies
to reflect remote work support and employee
reimbursements for telework.
Avoid the appearance of bias
• Do not specifically designate younger
employees or employees without underlying
conditions to return first. The
EEOC states that involuntarily excluding
workers over 65 violates the Age
Discrimination in Employment Act,
even if it is for “benevolent reasons.”
• Beware of the potential for a disparate
impact lawsuit, where the employer
makes an innocent decision with a
discriminatory effect. Suppose you
welcome back sales representatives
but not administrative assistants in
an attempt to increase revenue while
minimizing payroll costs. Suppose
the sales folks are under 40, while
the assistants are all over 40. This is a
disparate impact age-discrimination
lawsuit waiting to happen.
• Do not retaliate against employees
for taking COVID-19-protected leave
or needing it in the future. If your
employee advises their attendance
will be spotty because they are
taking care of their father who has
COVID-19, you cannot use that as a
reason not to welcome them back.
“Protected leave” means just that:
You cannot retaliate against employees
for using it. The Families First
Coronavirus Relief Act, California’s
COVID-19 Paid Supplemental Sick
Leave and the Family and Medical
Leave Act (if applicable) each provide
protected leave for various reasons
related to COVID-19. Experienced
employment counsel can help you
determine how much leave you must
provide, to whom and who pays for it.
• Be sure to post the FFCRA poster alongside
your other employment-related
posters in the workplace. The FFCRA is
in effect through Dec. 31. One of the
FFCRA’s six reasons for leave is inability
to work because a child’s school or
place of care is unavailable due to COV-
ID-19. Place of care can mean summer
camp too, so this protection could
extend well beyond the school year.
• Your employee could contend they
have anxiety about returning to work,
which could potentially qualify as a
disability under the Americans with
Disabilities Act. They may contend that
working from home is a reasonable
accommodation, if employees have
done so for months. Fully engage in the
interactive process in good faith, and
seek expert help if needed.
• Ensure that you have a legitimate,
nondiscriminatory reason for every
employment decision. Test your
reason by saying it aloud: Would you
be comfortable repeating it in front
of a jury? Finally, ensure you have
clear documentation of the reasons
for your decisions.
Jennifer Duggan founded Duggan Law
Corporation in 2013. She is an employment
law specialist and litigator with more than
24 years of expertise representing employers
of all sizes. Duggan has consulted on
employment issues for Comstock’s.
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