Breaking New Ground: Employer RTW Questions

Below are questions that we have received from employers and issues employers should consider as they prepare to open their workplaces.  Not all questions have clear cut answers.  Please remember that the return to work decisions your organization makes and the process you use to make those decisions will be scrutinized in any subsequent COVID-19 related litigation.

What are Some of the Legal Risks

  1. OSHA fines and reporting obligations
  2. Fines and penalties under local ordinances or orders
  3. Workers Compensation claims
  4. Lawsuits (EEO or other basis) from employee or family of deceased employee

Question: Should I have an RTW Coordinator or Team?

Answer: Employers should consider designated people to develop an RTW plan and a RTW Team to implement and enforce the RTW plan.

Question: Do I have a medical professional partner to implement any medical testing/screening that is part of my RTW plan?

Answer: There are third party medical companies that will assist employers in implementing testing

Having a third party gather medical information is highly recommended to avoid violating employment laws like the ADA, HIPAA and GINA.

Question: Can employers require employees to take medical tests?

Answer: Yes.

On April 23, 2020, the EEOC issued new guidance to employers that permits mandatory testing of employees for the presence of the COVID-19 virus prior to entering the workplace. The EEOC’s guidance came with a few caveats for employers as well:

  • Employers should ensure the tests are accurate and reliable.
  • Employers may consider the incidence of false-positives or false-negatives associated with a particular test.
  • Employers must remember that accurate testing only reveals if the virus is currently present, and a negative test does not mean an employee will not acquire the virus later.
  • Conduct environmental cleaning and decontamination of infected areas.

There may be state specific requirements and guidance.  Please consult an employment lawyer to get additional and specific information.

Question: Can I send a sick worker home and require a doctor’s note to return?

Answer: Yes.

Question: Can you require employees to use PPE?

Answer: Yes.

An employer may require employees to wear protective gear for example, masks and gloves) and observe infection control practices (for example, regular hand washing and social distancing protocols. Be prepared with answers as to why the Company is requiring some form of PPE.

Question: Can I require my employees to wear masks?

Answer: Yes. However, there is a difference between masks and face covering. 

Mask– A filtering respirator (such as N95 respirators) or a specialized medical grade or surgical mask worn by healthcare personnel, first responders, and workers in other industries. Due to supply issues, the CDC recommends that masks be reserved for healthcare workers and other medical first responders.  Face Covering– A cloth, bandana, handmade mask that covers the wearers mouth and nose.CDC recommends that masks not be required in the employment context.  Acceptable to have a face covering- snug, secure, multiple layers of fabric, allow breathing and can be laundered and machine dried. Purpose of “face coverings” in the average workplace is to prevent inadvertently infecting others.

Please also consider any disabilities (ADA) or religious (Title VII) concerns that employees may have

Question: Is PPE, Masks, or Face Coverings required in the workplace?

Answer: Must refer to state and local ordinances for guidance.

Question: Who pays for mandatory PPE?

Answer:  Must refer to state and local ordinances.

Question: How do we enforce PPE requirements?

Answer: Similar to any other work requirements- like dress codes, etc.

Be consistent and consider if any accommodations (disability or religious) should be made.

Question: Should we/must we enforce distancing protocols?

Answer: Yes./ No.

All employers need to consider how best to decrease the spread of COVID-19 and lower the impact in their workplace. General Guidance-

Question: How does the EEOC definition of a “direct threat” relate to COVID-19?

Answer: COVID-19 pandemic meets the direct threat standard

“Direct threat” means a significant risk of substantial harm that cannot be eliminated or reduced by reasonable accommodation. 29 C.F.R. §1630.2(r)(1998). There is a process for an employer to determine if the individual is presently a direct threat.  Please consult an employment lawyer to get additional and specific information.

What types of testing are available?

Answer: Consult a medical partner.

Employers who conduct testing should take into consideration how potential requests to be excused from a testing requirement for medical or faith-based reasons will be handled.

These are also some legal considerations to consider, including:

  • Determining the reason for the testing to assist in selecting the best testing protocol.
  • Testing must comply with employment laws.
  • Maintaining of medical records resulting from testing.
  • ADA accommodation may be necessary in regard to screening requirements.
  • How to handle an employee’s refusal to submit to a test.
  • FLSA considerations related to the time employees use for testing process. 
  • Determine when and under what conditions an employee who tests positive for COVID-19 will be able to return to the workplace.

What ethical issues should you consider?

Answer: Religious concerns, disability, and stigma.

Question: How do tests play a role in FFCRA and EMFLA?

Answer: No real impact.

EFMLA should not be impacted in any way with medical testing or screening because EFMLA is only triggered because of an worker’s inability to work because of the need to care for a child under the age of 18 due to a school or child-care facility closure caused by an emergency declared by federal, state, or local authorities related to COVID-19. It does not cover other COVID-19 related absences—although ordinary FMLA may cover such absences.

Question: Are there any protections under the Americans with Disabilities Act (ADA) for workers that are at a higher risk of contracting COVID-19?

Answer: Yes, the EEOC issued Guidance that workers deemed high risk by the U.S. Centers for Disease Control and Prevention (CDC) may request ADA accommodations.

On May 5, 2020, the EEOC issued guidance that specific COVID-19 high-risk groups may request an ADA accommodation.  Employers should engage these employees in the interactive process to determine whether a reasonable accommodation available to reduce their risk of contracting COVID-19.

Please consult an employment lawyer to get additional and specific information.