What To Know About Coronavirus And Return-to-Work Legal Issues

As North Texas businesses get back to work, companies are scrambling for legal and practical advice as they prepare for the realities of managing workplaces during the Covid-19 crisis.

Polsinelli law firm recently published a blog about how states and businesses are on their own based on a CDC official’s statement to the Associated Press that the much-anticipated “Guidance for Implementing the Opening up America Again Framework” (“Guidance”) will “never see the light of day.” (click here to read it)

We recently spoke with Counsel Lon Williams and Associate LaToya Alexander, both Dallas-based members of the Polsinelli’s Labor & Employment department, to provide insight on the topic.

What are the legal dangers and logistical challenges businesses might face as they start to reopen operations?

There are many legal dangers ranging from ensuring reasonable accommodations, wage and hour compliance issues (particularly with regard to putting on or taking off personal protective equipment or temperature taking procedures), updated leave of absence policies, etc. In addition, logistically, some hurdles employers face include how to implement social distancing measures effectively, preparing for employees who may resist returning to on-site work, and potential continued disruptions due to COVID-19.

What guidelines should businesses follow when dealing with health and safety issues?

The Texas Department of Health and Human Services has issued recommendations and guidance for businesses that include disinfection suggestions, teleworking and leave suggestions, and specific suggestions for employers based upon their industry. Governor Abbott’s Strike Force to Open Texas has also issued checklists for businesses to use as the state continues to open.

What do employers need to do to meet such obligations?

Employers have a “General Duty” to provide a safe workplace under OSHA and need to prevent occupational exposure to COVID-19. To meet this obligation, employers should examine the screening measures suggested by OSHA and carefully consider any mitigation measures recommended by the CDC.

If employers decide to do any sort of diagnostic testing on workers, what should they be paying attention to in regards to regulatory requirements?

The EEOC has confirmed that an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus, provided such tests are accurate, reliable, FDA approved, and otherwise legally compliant. As a general rule, most employers should not undertake to self-administer or require employees to self-administer any tests. Rather, testing should be outsourced to an FDA approved and otherwise qualified service provider.

Are there any legal pitfalls they should look out for when it comes to diagnostic testing, such as keeping info confidential?

Yes. Employers should treat such information the same way they do other medical documents, i.e. maintain the information in a separate file from the employee’s general personnel information and limit access of the medical information to only those who have a need to know.

Are bias claims an issue employers should worry about?

An employer can hopefully avoid bias claims by following EEOC and ADA guidance. This includes considering offering telework or discussing alternative work arrangements for vulnerable populations, engaging in the interactive process for individuals with disabilities under the ADA, and ensuring that leave policies are applied equally. In addition, employers should use a fair and consistent approach across the workforce and should be careful about “suspicion” based testing or screening measures that might create a perception of certain employees or groups being singled out.