The Employer’s Guide to Returning to Work During COVID-19 (Part 2)

This is the second installment of our three-part series designed to guide Minnesota employers through the process of returning to more normal operations.  The focus here is on bringing employees back.

Some employees have a right to stay out

Remember first when calling back your employees that some of them may have continuing rights to remain off work under the Family and Medical Leave Act (FMLA) and the Families First Coronavirus Response Act (“FFCRA”).  Be sure you understand precisely what those rights are before issuing a return-to-work directive to those individuals.

You can review our previous guidance on the FFCRA in our piece entitled Congress Passes Amended COVID-19 Paid Leave Bill With Critical Changes.

Some employees are entitled to accommodations

An employee with a known disability may require accommodations in order to continue or resume working during the COVID-19 pandemic. Employers are obligated to engage in an interactive process with that employee to determine an appropriate accommodation that can be provided without undue hardship.  Furthermore, employers may still seek documentation to determine the extent of the individual’s disability under the ADA (as long as the employer was not aware of it prior to disclosure).

Remember, teleworking, requesting PPE, or other similar accommodations that may prevent a disabled worker from getting sick with COVID-19 may be a reasonable accommodations according to the Equal Employment Opportunity Commission (“EEOC”). Another consideration is to provide end dates for any COVID-19-related accommodation, so the process is quicker, but when the need for the accommodation ends, so does the accommodation.

Health Screenings for Returning Employees

Before COVID-19, health screenings (i.e., medical examinations/inquiries) were prohibited under the Americans with Disabilities Act (“ADA”) except when an employer could show that the exam was “job-related and consistent with a business necessity.” A medical examination/inquiry is job-related and consistent with a business necessity when an employee may pose a “direct threat” due to a medical condition—i.e., “significant risk or substantial harm to the health or safety of [others] . . . ”  Significantly, the EEOC recently announced that the COVID-19 pandemic constitutes a direct threat such that employers may implement health screens such as temperature checks, health questionnaires, and COVID-19 tests.

Even so, some state and local laws add additional restrictions. Minnesota law,  for example, requires that employers obtain consent from an employee prior to any medical examination or inquiry. If an employee refuses to consent, the employer may place that employee on unpaid leave until they consent to the examination or conclude a 14-day isolation period, whichever comes first.

Health questionnaires may include questions about whether the worker is currently ill, has any symptoms related to COVID-19 (e.g., fever, shortness of breath, cough, or other symptoms on the Centers of Disease Control’s (“CDC”) COVID-19 symptoms page), or is currently caring for someone who is ill. If you decided to conduct such assessments, consider doing them at the start of each shift. To help with this, the Minnesota Department of Employment and Economic Development’s (“DEED”) created a symptoms screener that employers may use.

While performing the health questionnaire, you can also take the employee’s temperature to determine whether they have a fever. Also, consider using an oximeter to assess your employees – an oximeter clips to an individual’s finger and measures heart rate, temperature, and blood oxygen levels. Blood oxygen levels (anything under 94%) may be indicative of COVID-19. You should sanitize the probe after every use, have the workers administering the assessments change gloves after every reading, and then log the temperatures and file them confidentially in accordance with ADA requirements for maintaining health-related data separate from personnel records.

Lastly, under the EEOC’s recent guidance, employers are permitted to ask employees to take a COVID-19 test before returning to work. However, given the scarcity of tests it is unlikely that an employee who is not high-risk or currently exhibiting symptoms will receive one in the near future. That said, any employee exhibiting symptoms may want to speak with their health care provider.

Whether an employee has been tested and confirmed, or is presumed positive, you may want to follow the following return-to-work guide:

Option 1 –If it is determined that an employee will not receive a test, the employee may return to work after:

1) The employee has no fever (defined as 100.4 degrees Fahrenheit or above) for at least 72 hours (3 full days) without the use of medicine that reduces fevers; AND
2) Respiratory symptoms have improved (cough, shortness of breath); AND
3) At least seven days have passed since employee’s symptoms first appeared.

Option 2 – If employee is tested, then that employee can return to work after:

1) The employee no longer has a fever (without the use of medicine that reduces fevers); AND
2) Respiratory symptoms have improved; AND
3) The employee has received two negative tests in a row at least 24 hours apart

For health care employers, the CDC has provided specific guidance regarding return to work for employees suspected or confirmed to have COVID-19.

Also, an employee may return to work earlier if a doctor confirms the cause of an employee’s fever or other symptoms is not COVID-19 and releases the employee to return to work in writing.

Lastly, as noted above, remember your obligations under the ADA to keep employees’ medical information confidential and stored separately from an employee’s personnel file.

Common Issues with Employees Returning

Employers calling their employees back to their workplaces can expect to hear a number of concerns being expressed by those workers.  Some of those concerns may stem from individualized circumstances pertaining to the employee’s health or physical condition while others may be more in the nature of generalized fear of contracting COVID-19.

Here are some of the re-occurring themes and how you might respond:

Immunocompromised Employees

• Employee may be “particularly vulnerable to COVID-19” and may qualify for leave under the FFCRA.
• However, employee is only entitled to leave if the employee’s health care provider advises the employee to quarantine because they are “particularly vulnerable,” and by following the advice of the employee’s health care provider to self-quarantine, the employee is prevented from being able to work or telework.
• If employee is able to telework, employee may not be entitled to Expanded Paid Sick Leave (EPSL).
• Remember your obligations under other leave statutes, because the employee may qualify for FMLA, ADA accommodations, or other state law leave.

Hesitant Employee/Employee Refuses

• Understanding the reasoning behind the hesitation is vital.
• See if the employee qualifies for leave, or if there is a specific reason for the hesitation—e.g., determine whether the employee may be entitled to an accommodation, leave under the FFCRA, FMLA, or state law equivalent, etc.
• Reassure the employee and confirm that you are following all available CDC, OSHA, and public health guidance related to COVID-19.
• If employee still refuses, it is up to the employer to consider whether the employee’s conduct is a refusal to work subject to discipline.

Employees Receiving Unemployment Benefits

• In some situations, employees receiving unemployment may be receiving more than their regular rate of pay after the $600 from the CARES Act.
• For those employees, it is likely that once you offer work (and thereby notify the unemployment office that you have recalled the employee), they likely do not qualify for unemployment benefits (but this varies from state-to-state).
• Send the employee a written recall notice.
• Consider educating the employee on the consequences of not returning to work and ask whether they need any leave or accommodations.
• If employee still refuses, it is up to the employer to consider whether the employee’s conduct is a refusal to work and if the employee is subject to discipline.

Employees Unable to Return

• Since employees may be unable to return due to being a confirmed positive (or presumptive positive) COVID-19 case, or fall within one of the reasons for EPSL or Expanded FMLA, determine whether they may be eligible to leave under the FFCRA.
• In some cases, the employee may be eligible for benefits under FMLA, ADA, or other accommodations.

Employees with Logistical Issues

• Some employees may have other logistical challenges to handle, including caring for children who are home from school, but there are other situations as well.
• Consider offering EPSL or EFMLA under the FFCRA to any employee who qualifies for it.
• Otherwise, employee may be able to utilize existing employee-provided benefits.
• Ultimately, however, it is for the employees to resolve their own logistical issues.

Bottom Line

Returning your employees to the workplace during a pandemic will require a complex mixture of logistics, legal compliance and skilled employee relations.  Good planning will be essential.

Watch for Part 3 of this series which will address workers compensation, OSHA compliance and other legal issues employers may face in returning their employees to work.