May 14 2020

Employment law poses some of the most important compliance issues for businesses and their in-house counsel under the best of circumstances. During a pandemic, these issues become heightened.

“We know companies around the country are struggling to reopen their businesses,” Mark Henriques, the co-leader of Womble Bond Dickinson’s COVID-19 Task Force, said. “They are looking for ways to reopen that are safe and that comply with the law.”

Beth Jones, the leader of the firm’s Employment Team and co-leader of the COVID-19 Task Force, said as employers bring back – or consider bringing back – workers from layoffs, furloughs and work-from-home arrangements, they need to consider the size and layout of their facilities, the level of interaction with the public, COVID-19 activity in the geographic area and other health and safety issues.

“There is no one-size-fits-all answer,” she said. But a good starting point is for companies to develop reentry protocols to guide all aspects of their operations during this period. Jones said such guidance should be shared with employees as soon as possible.

“This helps build employee confidence in what is an anxious time,” Jones said.


Employees Who Can’t (or Won’t) Come Back to Work

But despite a company’s best planning efforts, there may be a number of employees who do not or cannot return to the workplace for a variety of reasons, including underlying health conditions, family members with underlying health conditions, lack of child care, symptoms of COVID-19, a lack of a financial incentive (due to expanding unemployment benefits) or just a general fear of getting sick.

“The number one question we’re getting is about employees who are reluctant to return or who refuse to return to work,” Richard Rainey, a veteran labor and employment attorney, said. He said these issues need to be handled on a case-by-case basis, as the employer’s obligations can vary greatly depending on the reason the employee doesn’t wish to return.

For example, for employees with underlying health issues, Rainey said they may need to be treated as an individual with a disability under the ADA. “You have to discuss accommodation options with them, he said—either leave options or alternative ways for them to do their jobs.”

Rainey said that employees who choose to stay out because they are collecting more money on unemployment are risking legal action. “Some states are being aggressive in requiring employers to report whether they have offered an employee a chance to come back to work,” he said.

For employees who are scared to return to work, Rainey said educating workers on how COVID-19 is transmitted, and the steps the employer is taking to keep workers safe, can be helpful. In general, he said employers are trying to work with employees, such as allowing unpaid leave, even if they don’t have a formal unpaid leave policy.

“If the person can do their job from home, many employers are letting employees stay home,” Rainey said. “But if they can’t do their job from home, employers can, at some point, require them to come back.”

Likewise, Jones said many employers are being flexible with employees who are experiencing childcare issues due to schools and daycare centers being closed. “It’s difficult to open the economy if schools and child care centers are closed,” she said. Companies with fewer than 500 employees may offer these workers expanded leave under the Family Medical and Leave Act (FLMA). 

If a group of employees expresses concern about returning to work, Rainey said this may invoke the National Labor Relations Act (NLRA)—even in non-union shops. The NLRA prohibits retaliation or discrimination against “protected concerted activity”. 

“You can envision in this pandemic setting employees coming forward and expressing concerns,” Rainey said. “If so, employers need to take this seriously.”


Workplace Health Screenings and Dealing with Sick Employees

Employees with COVID-19 symptoms are an entirely different situation than employees who cannot or will not return to work. “A key containment strategy is to keep people with symptoms out of the workplace,” Jones said. Symptomatic employees can work from home, if able, but they can and should stay out of the workplace.

However, employers cannot preemptively remove members of specific groups from the workplace simply due to their classification as being at risk.  For example, while pregnant women and senior citizens are at a higher risk of serious complications from COVID-19, Jones said employers may not force them out of the workplace as a group for the employees’ own protection.

“Do an individualized assessment of each employee,” she said. “Focus on reducing the risks for others, rather than the employees themselves. Barring someone from the workforce as a threat to themselves is likely a last resort and not often indicated after the assessment.”

Henriques noted that many employers are considering on-site health screenings, such as temperature checks, as they reopen their businesses. But what is permissible?

Jones said employers have greater latitude to gather such medical information during the current pandemic. However, they must keep this information confidential and separate from the employee’s regular HR file. She also noted that temperature checks “are not a fail-safe test,” as many COVID-19 cases do not exhibit a fever. 

Henriques said, “Are we going to create a false sense of security because everyone got temperature tested?”

Likewise, Rainey said employers legally can require employees to take serology or antibody tests, but those tests may not be reliable enough to provide certainty that an employee is virus-free.

Health screenings also raise the question of who will perform such checks. Many employers are turning to contracted healthcare providers to perform these services. Employers should ensure that healthcare screeners have adequate personal protective equipment (PPE) and contactless thermometers.

Masks are another important consideration, as they are recommended in many workplaces and employers may be able to require them. “You really need to look at your local orders on that,” Rainey said. Employers should provide masks to their workers, particularly if they require them on the job.

But what if employees refuse to wear a mask? Rainey said this should be treated as a safety violation, but first, the employer should explore whether the employee has a medical reason for not being able to wear a mask. “Don’t have a knee-jerk reaction to imposing discipline,” he said.

That advice applies broadly to an employer’s dealings with employees in the COVID-19 environment. Companies that consider issues on a case-by-case basis, maintain open lines of communication with employees, and try to work with employees’ needs will be better positioned to restart operations. Employers should be open to new ideas and approaches about how to get work done while maintaining a safe workplace for their team members.

“I think this gives us an opportunity to consider the nature of work and what is truly an essential function for each job,” Jones said.

Additional Resources

To view a recording of the presentation this article is adapted from, please click here. The slides from this presentation are also available to view and download, in addition to a FAQ Sheet covering the top questions we have received on this topic. 

Click here to download the Womble Bond Dickinson Return to Work Resource Guide, which offers practical advice on trends, challenges, and best practices, based on four recent webinars featuring our attorneys and outside professionals. 

In case you missed it, previous installments in our Return to Work Webinar Series can be accessed by clicking the links below: 

To help navigate the COVID crisis, we are sharing actionable content on our COVID-19 Resource Hub: Navigating the Legal Challenges of COVID-19. This is the best place to find fresh perspectives and insights from Womble Bond Dickinson (US) attorneys on a real time basis.

For information on state-level business closure and reopening orders, please click here.