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COVID-19: What Employers Can Ask

Insights from an employment lawyer about what employers can ask, what they should do, and what could be coming.

In addition to health concerns and social distancing hurdles, COVID-19 has brought about a number of legal issues that affect the operations of employers in Texas. Companies need to know what they can require, ask about, and best practices with employees. 

“The very first thing we’re saying is that the starting point of your COVID-19 response needs to be compassion,” says Michael Correll, labor and employment partner in Reed Smith’s Dallas officeHe works with everyone from professional services to manufacturing all around the country, and has been encouraged with the response of most of his clients. “They’re already going above and beyond what the law would require them to do in terms of taking care of their people.” 

Correll has been guiding employers through a number of issues. Questions about what to do with sick people in the workplace, what questions management is allowed to ask, how rigorously remote work can be enforced, and who is essential to have on site.  

To answer these questions, Correll noted that the changing dynamic of the situation means the legal answers are just as fluid. “It’s changing by the hour, because we’re getting guidance from the government that directly impacts what we’re supposed to do. Events are happening that qualify as triggers that result in changes to what the law allows.”  

In Texas, you can ask your employees if they are feeling well or if they are having specific symptoms that are consistent with COVID-19. What should be avoided, Correll says, is to start asking about specific diagnoses. An employer can’t ask if someone actually has COVID-19, or what they heard from their doctor. “Those kinds of questions are problematic not just because it gets into the employees privacy as it relates to COVID-19, but it can get into the employees privacy as it relates to other issues,” Correll says. “An employer needs to be careful that they’re not getting other disability related information thatthere is no reason to be asking about. 

In regard to working remotely, Correll says how the message is delivered is more important than the actual decision. “What we’re generally seeing is that employers are very strongly encouraging work from home where they can,” he says. That’s just a matter of social responsibility in a lot of respects because it’s separating folks and engaging in social separations.” 

We are not hearing a lot of reports of friction in this area, but the people are pulling together and doing the right thing,” Correll says. There are many segments of the economy that can’t afford to go home, such as healthcare and manufacturing, but Correll has seen some creative problem solving amongst employers. Delaying start times to avoid mass public transit, staggering who comes into the office on which days or which times, and keeping only essential employees onsite are all helping to increase social distancing. “Folks are really taking the challenge and coming up with solutions and being creative and how they adjust. 

One question remains about what the government is able to do in regard to mandating quarantine or sequestration, as in Italy and China. Correll says time will tell. “This is really unprecedented and the scope of emergency powers that can be implemented to restrict movement and things like that, and hasn’t really been tested in this way before. So we don’t know.” 

Correll says he is counseling companies to prepare for both short and long-term approaches, several weeks versus several months. While most of the economy is still functioning for the most part, things might change. “We’re already starting to look at contingency planning on things that we can do if this drags on and on, because as the revenue stops, the ability to fund a lot of things becomes more difficult. 

Correll is hopeful about how the country and employers will pull through this time. “Some of the responses are different and some of the circumstances are different,” he says. But everyone is being hit with this, and everyone is working very hard to come up with the best possible solutions within their scenario. 

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