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Enforcement Will Not Go by the Wayside During the Pandemic

While making sure to adhere to each state’s required tasks for reopening, employers must not forget to comply with discrimination laws and OSHA and EEOC guidance. Recent guidance and court decisions make clear that OSHA, the EEOC, and other enforcement agencies will not turn a blind eye to violations and discrimination claims arising during the pandemic.

OSHA Guidance

Despite calls for the Occupational Safety and Health Administration (OSHA) to issue an “emergency temporary standard” covering the pandemic, the agency has declined to do so. For example, the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) filed a lawsuit seeking a writ of mandamus demanding that OSHA issue an “emergency temporary standard” covering COVID-19. A three-judge panel in the D.C. Circuit denied the petition stating, “[i]n light of the unprecedented nature of the COVID-19 pandemic, as well as the regulatory tools that the OSHA has at its disposal to ensure that employers are maintaining hazard-free work environments, . . . the OSHA reasonably determined that an ETS is not necessary at this time.” Instead, the agency has issued a series of nonbinding industry-specific recommendations to employers and pledged to issue citations under existing generally applicable rules.

To date, OSHA has issued one citation stemming from a complaint fielded during the pandemic. The citation was issued to a nursing home in Georgia alleging that six nursing home employees were hospitalized as a result of COVID-19 that was contracted while at work and that the nursing home failed to report the hospitalizations to OSHA within the statutorily mandated time period.  OSHA proposed a $6,500 fine for the alleged violations.

Although OSHA has not issued, and does not plan to issue, emergency temporary standards relating specifically to COVID-19, employers need to continue to follow general OSHA guidance. OSHA will continue to protect workers through enforcement measures during the pandemic. OSHA has received thousands of complaints since the beginning of the virus, and the nursing home citation is likely just the first, with more OSHA COVID-19-related citations to come.

Recent EEOC Guidance

The EEOC recently updated its Technical Assistance Question and Answers documents titled, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.”  The document has a section on returning to work that provides guidance on what employers should do/can do if they know that one of their employees has a medical condition that the CDC identifies as placing individuals at higher risk for severe illness.

The guidance provides that the Americans with Disabilities Act (ADA) does not allow an employer to exclude an employee from the workplace – or take other adverse action – if the employer is concerned about the employee’s health solely because the employee has a disability that the CDC identifies as potentially placing the employee at “higher risk for severe illness” if the employee gets COVID-19.  Under the ADA, such actions are only allowed if the employee’s disability poses a “direct threat” to his or her health that cannot be eliminated or reduced by reasonable accommodation. The “direct threat” requirement is a high standard. To rely on it as an affirmative defense, an employer has to show that the individual had a disability that posed a “significant risk of substantial harm” to his or her own health under 29 C.F.R. § 1630.2(r).

The guidance further provides that a “direct threat assessment cannot be based solely on the condition being on the CDC’s list; the determination must be an individualized assessment based on a reasonable medical judgment about this employee’s disability – not the disability in general – using the most current medical knowledge and/or on the best available objective evidence.” The ADA regulations require that an employer consider the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm. Employers may also include the severity of the pandemic in the area, the employee’s own health, measures the employer may be taking to protect all workers, and particular job duties.

Importantly, even if an employer determines that an employee’s disability poses a direct threat to that employee’s own health, the employer cannot exclude the employee from the workplace or take adverse action unless there is no way to provide a reasonable accommodation, absent undue hardship. “An employer may only bar an employee from the workplace if, after going through all these steps, the facts support the conclusion that the employee poses a significant risk of substantial harm to himself that cannot be reduced or eliminated by reasonable accommodation.”

As employers start the reopening process, a best practice is to inform all employees about whom to contact if an employee wishes to request an accommodation for a disability that he or she may need upon returning to the workplace. Receiving requests in advance allows employers time to begin and engage in the interactive process. Employers should make sure that whoever is receiving the requests/inquiries knows how to handle them consistently with the different federal and state employment nondiscrimination laws that may apply.

Additionally, the document has a section on age. The Age Discrimination in Employment Act (ADEA) prohibits employment discrimination against individuals age 40 and older. The guidance makes clear that the ADEA prohibits covered employers from “involuntarily” excluding workers from the workplace based on their being 65 or older, even if the employer acted for benevolent reasons such as to protect an employee at higher risk of severe illness from COVID-19. Although the ADEA does not include a right to reasonable accommodation, workers age 65 and older may also have medical conditions that bring them under the protection of the ADA.

Finally, the document now provides guidance regarding antibody test results. Under the ADA, an antibody test constitutes a medical examination. In light of the CDC’s interim guidelines stating that antibody test results “should not be used to make decisions about returning persons to the workplace,” the guidance provides that an antibody test at this time does not meet the ADA’s “job-related and consistent with business necessity” standard for medical examinations or inquiries for current employees. As such, under the ADA, employers cannot require an antibody test before allowing employees to re-enter the workplace. The guidance notes that an antibody test is different from a test to determine if someone has an active case of COVID-19, which is permissible under the ADA.

To avoid discrimination claims, employers must be cognizant of this guidance and ensure they do not “involuntarily” exclude employees from the workplace due to age, medical condition, or antibody test results.

Take Away

During these rapidly changing times, employers must make certain to follow OSHA guidance and discrimination laws as they work to comply with reopening guidance issued by state and local government. OSHA and courts will be enforcing existing laws and guidance. This is evidenced by a number of wrongful death and negligence suits that have already been filed against employers and the initial citation issued by OSHA.

Hinckley Allen will continue to monitor the ever-developing COVID-19 situation and provide updates as appropriate. For further information, contact any member of our Labor & Employment Group.

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