Although the timetable allowing businesses to reopen is different in every state, most businesses are starting to plan for the inevitable day when employees will be allowed to return to the workplace and resume business operations at least in some form. In Iowa, the Governor’s April 27 proclamation loosened restrictions in 77 Iowa counties. Although restrictions remain in the other 22 counties, the Governor promised to review the conditions again on May 15, setting the stage for the potential reopening in the entire state.
Whether your employees have been able to work remotely, are furloughed, or some combination thereof, restarting and ramping up operations presents a host of unprecedent logistical challenges and legal dangers to businesses. We have identified ten of the most pressing questions employers are likely to face in the coming weeks and months as they undertake the task of getting their employees back to work.
Question No. 1: I want to make sure the employees returning to work do not have COVID-19; What kind of health information is an employer entitled to obtain before allowing an employee to return to work?
In normal circumstances, the ADA prohibits an employer from conducting a medical exam or otherwise asking about employee’s health, except under limited circumstances. But, the COVID-19 pandemic has caused EEOC to relax its normal strictures against employee testing. EEOC has published a Technical Assistance Guidance in which it has opined that taking an employee’s temperature before entering the workplace is permissible. You may also ask returning employees to complete a health questionnaire that inquires about facts relevant to COVID-19 (e.g., has the employee had a positive test, been exposed to someone with a positive test, has COVID-19 symptoms such as fever, cough, chills, or shortness of breath, or where the employee has recently traveled). Finally, you may ask whether the employee has or is working somewhere else, such as in a health care field that could present a higher risk of exposure. All medical information obtained a result of these efforts must be kept confidential.
Question No. 2: What about testing? Does an employer have the right to compel an employee who has no COVID-19 symptoms to take a test?
As a practical matter, there are not at the present time sufficient tests available, so widespread testing is probably not feasible. But, what about when more testing becomes available? Because of evidence that a person with no symptoms may nonetheless have contracted the COVID-19 virus, it may be reasonable for an employer to require testing as a condition to allowing the employee to return to work. EEOC recently updated its Technical Assistance Guidance to clarify that employers may require COVID-19 testing as a condition of returning to work.
Two cautionary notes for employers who decide to test. First, employers should consult with public health authorities or medical professionals before implementing a testing program, to ensure the tests are safe and accurate. Second, the testing EEOC permits is testing that detects whether the employee is currently infected with the virus. There is no reliable guidance whether testing for the presence of antibodies using serology tests is permissible. As such, serology testing should be avoided until more guidance is available.
Question No. 3: Does the employer have to pay employees for the time it takes for COVID-19 testing?
If testing is a requirement to return to work, the employer should pay employees for the time spent waiting for and undergoing a test.
Question No. 4: If an employee has an active case of COVID-19, when should that employee be permitted to return?
An employer may require the employee to get medical clearance that they can no longer spread the virus. However, in some communities physicians have not been available to provide return to work certifications. In that case, employers should follow the CDC Guidelines, which require an employee to isolate for at least seven days from the onset of symptoms, be fever free without fever reducing medications for at least 72 hours, and have seen an improvement in respiratory symptoms.
Question No. 5: Some employees don’t want to come back to the workplace right now; does an employer have the right to insist they return?
You should discuss with the employee the reason they don’t want to come back to work right now. In some cases, the employee may have a legal right not to come back, but not in every case. For example, if the employee has contracted the COVID-19 virus, is quarantined because of medical advice, or is caring for a relative who is sick, the employee may be entitled to leave under the FFCRA or otherwise be entitled to an accommodation. The employee may also be entitled to leave if caring for a child because the child’s school or daycare is close because of COVID-19.
If the employee is not sick now but is afraid coming into the workplace will expose them to the virus, you should explore where the fear is coming from. If the employee is at high risk because of a medical condition or lives with someone who is, you should advise the employee the precautions you have made to prevent the spread of COVID-19 in the workplace (which should, at a minimum, follow the CDC mitigation strategies). You should also explore reasonable accommodations, such as continued telework for a period of time or a leave of absence. If attendance at work is an essential function and there is no reasonable accommodation, you may require the employee to come to work or suffer the consequences for refusing to report.
If the employee’s fear is not rational or there is evidence of other motives (such as continuing to receive the $600 enhanced unemployment benefit), an employer has the right to notify the unemployment authorities that the employee is refusing to return to work, which may jeopardize the unemployment benefits.
Question No. 6: If an employee believes they contracted COVID at work, is it covered by workers’ compensation?
A disease is compensable under the workers’ compensation laws only if it arose out of and in the course of employment. The employee must be able to prove that exposure to the COVID-19 virus in the workplace caused the employee to contract it. It may be more or less difficult to prove, depending upon the nature of the work and evidence of exposure in the workplace compared to other places the employee may have been exposed
It is important to note that benefits under the workers’ compensation law include lost time from work caused by the work-related illness, medical expenses, and permanent disability, if any, resulting from the illness. If an employee dies, the employee’s dependents are entitled to death benefits. Even in those cases where COVID-19 is proven to be work related, very few cases are likely to result in permanent disability or death.
Question No. 7: Does an employer have legal exposure if an employee contracts the virus while working?
Iowa Workers’ Compensation law in most cases is the only legal remedy for employees who have an injury or contract a disease on the job. The only way to get around the workers’ compensation law is if a supervisor was grossly negligent, that is the person knew there that an injury was probable and a consciously failed to avoid the peril. If the employer implements reasonable policies and procedures to limit exposure to COVID-19 it should eliminate any liability outside of workers’ compensation. (See Question 6, above).
Question No. 8: Do we have to tell our employees someone tested positive?
Employers should tell employees if someone in the workplace has tested positive for COVID-19, but should not disclose the employee’s identity, and take reasonable steps to prevent the identity from being disclosed.
Question No. 9: What if another outbreak in the fall causes schools to close again?
Paid leave for employees who cannot work because a child’s school is closed because of COVID-19 is effective until December 31, 2020. It is important to note that an employee has a total of 12 weeks of leave available for this reason. Whatever leave the employee has already used will reduce any future leave that is available.
Question No. 10: If a vaccine becomes available, can we compel employees to get the vaccine?
Maybe. Employers in certain industries, particularly healthcare, have the right to insist their employees get a flu vaccine every year. The same principle would probably apply to a COVID-19 vaccine.