By Vianei Braun

COVID-19 numbers fluctuate daily, but for the most part the reported cases and deaths are increasing with no identifiable path back to normalcy. Despite precautions, most workplaces will eventually suffer some kind of COVID-19 exposure or diagnosis. So what is a conscientious company supposed to do?

1. Re-evaluate Safety Protocols

Think through your existing safety protocols and make sure they reflect the genuine care and concern you have for your employees. In the event of an outbreak, the company should be able to show it took all reasonable steps to keep employees safe. Check www.cdc.gov to ensure you are following any CDC guidance specific to your industry.

Safety protocols will generally include wearing masks (unless alone in an office or work area), maintaining social distancing, minimizing the touching of surfaces (propping doors open, etc.), providing hand sanitizer, and frequent cleaning / disinfecting the office environment. Employee and visitor temperature screening is a legally permissible option but is not required.

2. Communicate, Monitor, and Offer Leave if Applicable

Clearly communicate that any employee who has been exposed to COVID-19, or who has COVID-like symptoms, should stay home and notify management. If symptoms develop at work, the employee should go home immediately. Monitor these situations and await test results.

Companies with fewer than 500 employees are covered by the Families First Coronavirus Response Act (FFCRA). Employees ill with COVID-19 or seeking a diagnosis are entitled to up to two weeks of paid sick leave (capped at $5,110). The cost of FFCRA leave is repaid to the company through payroll tax credits.

The FFCRA, in effect until Dec. 31, also provides up to 12 weeks of leave at two-thirds pay (capped at $12,000) for employees caring for a child whose school or place of care is closed due to COVID-19. See www.dol.gov for additional details (and a poster that you are legally required to post).

3. Follow EEOC Guidance

The EEOC has issued helpful guidance entitled “What You Should Know About COVID-19, the ADA, the Rehabilitation Act and Other EEO Laws.” www.eeoc.gov explains what employers can and cannot do when managing COVID-19 issues in the workplace. Most of the guidance is consistent with common sense, but the confidentiality requirement is tricky.

If an employee is diagnosed with COVID-19, the employer may not disclose the employee’s name when notifying co-workers. The employer’s designated representative (usually HR) may interview the employee to determine who may have been exposed. Possibly exposed co-workers may then be notified in general terms, such as “someone on this floor tested positive for COVID-19.” This is the rule even in small workplaces where the employee’s identity is obvious due to their absence.

4. Be Ready for Accommodation Requests

Some employees may be afraid to come to work, especially after receiving a notice of possible exposure. General fear of contracting COVID-19 is not legally protected. But an employee with an underlying disability may have legal protection under the ADA.

HR should be prepared to handle accommodation requests on a case-by-case basis. Most companies can’t afford to allow employees to telework or take leave simply because they are fearful. Business needs must come first, but employee morale is important too. To balance these concerns, HR should handle all requests respectfully and look for solutions consistent with business needs and company policies.

Reasonable accommodation requests covered by the ADA fall into a different category. These will usually include a doctor’s note specifying the employee’s disability and the requested accommodation. ADA accommodation requests involve legal risk and should be evaluated carefully, usually with input from legal counsel.

 

Vianei Braun is a shareholder and Chief Development Officer, Decker Jones, P.C. Experienced in employment matters and litigation, she provides practical advice on employment law compliance and avoiding the courtroom. Vianei’s diverse experience includes representing large and small companies in numerous sectors. She also handles administrative matters involving the EEOC, TWC, DOL, OFCCP, NLRB and other federal and state agencies.

This article was published in the November/December 2020 issue of Fort Worth, Inc.