Now that the conversation has turned to employees returning to work after COVID-19, many employers have questions and concerns about HR and safety issues for their workplace and staff. Here are a few FAQs on reopening a business after the coronavirus pandemic.
Can we screen employees returning to work for COVID-19?
Yes. Generally, inquiries about an employee’s health or a medical exam (like a temperature check) would not be allowed, but the Equal Employment Opportunity Commission (EEOC) has stated that screening employees for symptoms of COVID-19 is allowed since it is a direct threat to others in the workplace. Because of that, you may inquire about symptoms related to the virus, require self-reporting by employees, and take employees’ temperatures.
Known symptoms of COVID-19 include fever, cough, chills, shortness of breath or difficulty breathing, muscle pain, headache, sore throat, and sudden loss of taste or smell. As the medical community learns more about COVID-19, additional symptoms could be added to this list. Employers can check this page for currently recognized symptoms.
If you decide to do screenings, make sure you screen all employees; otherwise, you may find yourself in the middle of a discrimination claim. And remember that all information about employees’ health—including a lack of symptoms or temperature—must be kept confidential.
We are reopening after business closure due to COVID-19. Can we bring some employees back, but not others?
Yes. If you are recalling some positions, but not others, you should document the business reasons why only those positions were recalled. If you are recalling some employees in a certain position, but not everyone in that position, you should document the objective, job-related criteria you used to decide which employees to bring back. Seniority or previous job performance, for example, would be acceptable criteria and relatively easy to defend if you are ever challenged.
Some of our employees have said they don’t feel safe returning to work. Can we just permanently replace them?
We recommend extreme caution when deciding to replace an employee who refuses to work because of concerns about COVID-19. Generally, employees do not have a right to refuse to work based only on a generalized fear of becoming ill if their fear is not based on objective evidence of possible exposure. However, under the current circumstances, where COVID-19 continues to be a threat across the country, we think it would be difficult to show that employees have no reason to fear coming in to work, particularly but not exclusively in a location with a shelter-in-place rule. Returning employees may also have certain rights under state and federal law. Here are a few things to keep in mind:
- Recalled employees may have a right to job-protected leave under a city ordinance, state law, or the federal Families First Coronavirus Response Act (FFCRA).
- Employees who are in a high-risk category — either because they are immunocompromised or have an underlying condition that makes them more susceptible to the disease — may be entitled to a reasonable accommodation under the Americans with Disabilities Act (ADA) or state law if their situation doesn’t qualify them for leave under the FFCRA (or if they have run out of that leave). It would be a reasonable accommodation under the circumstances to allow the employee to work from home or take unpaid leave if working from home is not possible.
- Employees who live with someone who is high risk are not entitled to a reasonable accommodation under federal law, but we strongly recommend allowing them to work from home if possible or take unpaid leave. Otherwise, they may decide to quit and collect unemployment insurance. If you want to keep them as an employee, being compassionate and flexible is your best bet.
- Under Occupational Safety and Health Administration (OSHA) rules, an employee’s refusal to perform a task will be protected if all of the following conditions are met: Where possible, the employee asked the employer to eliminate the danger, and the employer failed to do so; the employee refused to work in “good faith,” which means that the employee must genuinely believe that an imminent danger exists; a reasonable person would agree that there is a real danger of death or serious injury; and there isn’t enough time, because of the urgency of the hazard, to get it corrected through regular enforcement channels, such as requesting an OSHA inspection.
Check state and local laws to see if additional protections may apply.
Instead of replacing employees who express fear at this time, we recommend that you consider methods to encourage employees to come to work and to help put their minds at ease. Consider emphasizing all of the safety methods you have put in place (such as scheduled handwashing, frequent disinfection of surfaces, social distancing rules, reduced customer capacity, staggered shifts, or more extreme measures if warranted by your industry). We recommend relying on the Centers for Disease Control and Prevention (CDC) and local health department guidance for establishing safe working conditions at this time. You might also consider offering premium pay (a.k.a. hazard pay) or additional paid time off for use in the future to employees who must come to work.
For more information, see our guide to reopening a business after COVID-19.