The COVID pandemic has been a game changer for businesses across the country and around the world. While some businesses have weathered the storm intact, some have had to completely rethink and retool their operations. Many have had to laid off valuable employees. Unfortunately, many others have had to close their doors for good.
But one thing is true for any business bringing workers back on the job …
You need a plan to navigate the liability risks and legal landmines.
That means staying on top of evolving recommendations, guidelines, and orders issued by federal, state, and local governments, such as the Families First Coronavirus Response Act. It’s crucial to avoid any legal entanglements – especially now.
Volatile times call for extra precaution
In these turbulent times of racial strife and social unrest, business owners need to be especially vigilant about their employment practices and about avoiding discrimination and civil rights violations when bringing employees back to work.
For guidelines on compliance, the Equal Employment Opportunity Commission (EEOC) has issued and recently updated its technical assistance for employers with regard to equal employment laws and COVID-19. A key focus is compliance with the Americans with Disabilities Act (ADA) regarding return to work.
Here are a few of the latest EEOC guidelines:
- Employers can take an employee’s body temperature or perform other health screenings as a condition to enter the workplace.
- Employers are not allowed to require antibody tests before permitting employees to reenter the workplace. The EEOC clarified that antibody tests are different than COVID-19 viral tests, which detect the presence of the COVID-19 virus and are permissible under the ADA.
- All information about any employee illness discovered during testing must be kept as a confidential medical record separate from their personnel file in compliance with the ADA and HIPAA.
- An employer may not exclude an employee from the workplace solely because of an underlying medical condition the CDC claims will put the employee at a “higher risk for severe illness” if the employee were to become infected with COVID-19. Employers can only exclude an employee from the workplace if the employee’s underlying medical condition poses “a direct threat” to the employee’s health that can’t be eliminated or reduced by reasonable accommodation, including telework, leave, or reassignment.
- Under the Age Discrimination in Employment Act (ADEA) and Pregnancy Discrimination Act (PDA), an employer may not exclude older or pregnant workers from the workplace because of their age or pregnancy, despite the fact these individuals may be at higher risk of contracting COVID-19.
The EEOC also outlines measures employers can take with new hires, including:
- Employers may screen job applicants for symptoms of COVID-19 after making a conditional job offer if they do so for all entering employees in the same type of job.
- Any medical exams are permitted after an employer has made a conditional offer of employment, including taking their temperature.
- An employer may delay the start date of any applicant who exhibits symptoms. According to current CDC guidance, an individual who has COVID-19 or associated symptoms shouldn’t be in the workplace.
- Employers must make sure any tests are administered in a non-discriminatory way.
For the complete list of EEOC guidelines, go to http://www.eeoc.gov/coronavirus.
Planning is key
If you’re bringing employees back on the job during this pandemic, a well-developed return-to-work plan is your best line of defense against compliance and legal roadblocks.
There’s one more thing your plan should include – a reliable insurance partner who can help you navigate these difficult times and your evolving insurance needs. For risk management advice, contact BNC Agency today.