As the COVID-19 vaccine becomes available across the country, companies are facing critical decisions as they create policies and/or plan for the transition back to work. Below is a list of questions and best practices Frantz Ward attorneys frequently discuss with clients related to key issues facing returning to the office.
Back to the Office Health Check
- Q: Do I legally have a right to ask my employees to take their temperature and screen themselves for COVID symptoms daily?
- A: Yes, an employer should ask its employees to take their temperature and screen themselves for symptoms prior to coming to work or entering the workplace
- Q: Do I have the right to ask them whether they have been exposed to anyone who has had the coronavirus?
- A: Yes. However, the Genetic Information Nondiscrimination Act (GINA) prohibits employers from asking employees medical questions, specifically, about their family members. So, you can ask them if they have been exposed to anyone who has had the coronavirus, but you cannot ask them if their family members have, or had, the coronavirus
- Q: If I found out they have been exposed, do I have the right to require employees to self-quarantine at home?
- A: You should prohibit them from entering the workplace while they wait for the isolation period to expire. An employee can telework whilst self-isolating or, if telework is not possible, may take paid or unpaid leave depending on the employer’s policy
- Q: Can I require that employees get the vaccine?
- A: Yes. Employees may, however, have a disability or sincerely held religious belief that prevents them from receiving the COVID vaccine. In that case, the employer should engage in the interactive process to see if a reasonable accommodation is possible. Click here to listen to our podcast with more information on this topic
- Q: Do employees have to tell us if they have the virus?
- A: Employers should require employees to tell them that they have the virus. And, employers have the right to ask if employees are experiencing symptoms, as well as the right to send employees home if they are displaying symptoms
- Q: What if they start to exhibit symptoms, can I ask them to go home?
- A: As mentioned above, yes. The CDC states that employees who become ill with symptoms of COVID should leave the workplace immediately
- Q: Can I require that visitors wear masks?
- A: Yes, an employer may require visitors to wear masks and observe infection control practices
- However, where a visitor with a disability needs a related reasonable accommodation under the ADA or a religious accommodation under Title VII, the employer should discuss the request and provide the modification or an alternative if feasible and not an undue hardship on the operation of the employer's business under the ADA or Title VII
- With this being said, under certain circumstances, wearing a mask is not required and is not appropriate. For example, if masks are in violation of documented industry standards, violate safety policies, there are extremely high temperatures on the plant floor, or employees are separated by more than six feet while on the manufacturing floor
Leave of Absence
- Q: Do I have the right to require employees wear a mask while they are not at their desk
- A: Yes, just as with visitors, an employer may require employees to wear masks and observe infection control practices subject to the ADA and Title VII
- Again, however, facial coverings may be inappropriate in certain construction or manufacturing settings
- Q: I see some employees are not wearing their masks over their nose and mouth, can I require them do it that way?
- A: Yes, subject to the ADA and Title VII
- Q: Should I provide PPE and sanitizer at the workplace at no cost?
- A: We would recommend providing PPE and hand sanitizer at the workplace free of charge. If, for whatever reason, PPE is being stolen, misused, or wasted – you may consider restricting access to PPE
- Q: How do I ensure we’re complying with Families First Coronavirus Response Act?
- A: The Families First Coronavirus Response Act is no longer in effect. However, we expect President Biden to attempt to implement similar leave
- Q: Do we need to tell the rest of the staff if one of our employees has COVID?
- A: You should notify those who may have come into close contact with the employee, without revealing the sick employee’s identity. For example, using a generic descriptor, such as telling employees that “someone at this location” or “someone on the first shift” has COVID-19, provides notice, and does not violate the ADA’s prohibition of disclosure of confidential medical information
- Q: Is this a violation of privacy laws?
- A: No. However, it would violate the ADA to identify the employee by name as the ADA requires that an employer keep all medical information about employees confidential
Cleaning and Disinfecting
- Q: Can I require that employees work remotely?
- A: Yes. This, however, is not likely practicable in the construction or manufacturing setting. Even if the employee cannot work remotely, you should require that the employee stay home. Your leave policy will, currently, dictate if this leave is paid or unpaid
- Q: What are the requirements for cleaning and disinfecting employee work areas?
- A: It is a good idea to frequently disinfect desks, workstations, and high-contact surfaces, and to disinfect common areas daily. In the event of a positive COVID test, you should close that area of the floor or office and perform a deep clean as quickly as possible.
- Cleaning and disinfecting specifics may vary by city or state
- Q: What steps need to be taken before employees are back to work?
- A: All employers should develop a policy outlining what steps it will take to ensure social distancing, clean workspaces, and that ensures that it isolates confirmed COVID cases. Any policy should, generally:
- Require employees maintain a minimum of six feet distance from each other
- Require facial coverings in the workplace unless otherwise unsafe or prohibited by law
- Require that employees perform daily symptom assessment
- Require that employees stay home if symptomatic
- Require regular handwashing by employees
Cafeteria, Conference Rooms, Construction Trailers
- Q: Can I limit the number of people that go into the cafeteria or meeting rooms to promote social distancing?
- A: Yes. We would recommend limiting such gatherings to 10 people or fewer – or, following more stringent state guidance. An employer can limit those in the cafeteria by, for example, staggering lunch times
- On a construction site, an employer should limit those in a trailer – keeping in mind that employees may tend to use these trailers to get warm in the winter months
- Q: What am I required to do legally to organize the plant to minimize the spread?
- A: Legal requirements may vary from state to state. However, an employer generally must ensure a minimum of six feet distance between people, and, if this is not possible, should reorganize the plant (which is probably impossible) or install barriers