Because False Claims Act cases can take many years to prepare, investigate, and litigate, we get to know our clients extremely well and routinely become their first resource for a variety of legal (and non-legal) questions and concerns unrelated to their whistleblowing, particularly with regards to employment issues.
For those of us able to work remotely, returning to the office may not loom large in our lives, but it is a different story for those who either have to be physically present in a workplace or have employers requesting their return. And so unsurprisingly we have been receiving a number of calls from clients asking if it is safe to go back to work, what precautions their employers are required to take, and what their legal options are if they think it is unsafe. Unfortunately, the answers to most of these questions vary on a state-by-state basis, but there is also a dizzying array of COVID-19 employment guidance floating around. So we thought it would be helpful for those returning to work to collect the relevant federal guidelines all in one place (while noting that several states have their own relevant guidance). (NOTE: This post only surveys guidance as it exists as of May 29, 2020.)
Without further ado, this Federal guidance includes:
- The White House’s plan for reopening the country which suggests that businesses should be opened in phases depending on their ability to adhere to guidelines aimed at limiting the potential for transmission of COVID-19 between employees or customers.
- Of course, each state controls what happens within its borders and each have issued their own orders governing how they will reopen businesses.
- The Department of Homeland Security’s guidance on how to define which critical infrastructure workers are considered “essential”.
- The CDC’s guidance for healthcare employment settings which is focused on patient care, protecting patients and workers, and preparedness measures for various types of healthcare facilities.
- The CDC’s separate guidance for non-healthcare employment settings, including recommendations for employers on how to: (1) prevent and reduce transmission among employees, (2) maintain healthy business operations, and (3) maintain a healthy work environment as well as a table outlining the engineering controls, administrative controls, and personal protective equipment (“PPE”) that employers may use to safely re-open workplaces.
- OSHA’s guidance which divides workplace environments into four risk categories and includes: (1) recommended standards for business reopening such as (a) preparedness and response plans, (b) infection prevention measures and the EPA’s “List N” (a list of EPA-approved disinfecting products), and (c) illness identification, workplace flexibility, and administrative controls; (2) engineering controls (isolating employees from work-related hazards) which vary by risk category; and (3) reporting requirements necessitating that employers report both COVID-19-related complaints and known or suspected COVID-19 cases, so that OSHA can investigate and confirm potentially dangerous workplaces or working conditions.
- The many topics of guidance that the FDA issued regarding COVID-19 for health care providers.
Of paramount importance to employees is the EEOC guidelines for employers for workplace re-openings. The EEOC has helpfully consolidated all guidance to date on a single page and has included a FAQ page that references the date of the specific guidance used to answer each question.
A few key points from the EEOC’s guidance are as follows:
- Employers can screen employees for COVID-19 as long as the steps they take to do so are consistent with the ADA.
- The ADA permits employers to make disability-related inquiries and conduct medical exams if “job-related and consistent with business necessity.” Inquiries and reliable medical exams meet this business necessity standard if they are necessary to exclude employees with a medical condition that would pose a direct threat to health or safety.
- The ADA “direct threat” requirement is a high standard. As an affirmative defense, direct threat requires an employer to show that the individual has a disability that poses a “significant risk of substantial harm” to his own health under 29 C.F.R. Section 1630.2(r).
- Employees with one of the medical conditions that the CDC has identified as at a higher risk for severe illness from COVID-19 can request reasonable accommodations from their employer by:
- letting their employers know that they need a change for a reason related to a medical condition (here, the underlying condition); and
- engage in the “interactive process” by answering any employer questions or proving medical documentation to the employer to help the employer decide if the individual has a disability and if there is a reasonable accommodation, barring undue hardship, that can be provided.
- In a situation where an employer knows that an employee has one of the CDC identified “higher risk” conditions but the employee is returning to work without requesting accommodation:
- The ADA does not mandate that the employer take action but also does not allow the employer to exclude the employee – or take any other adverse action – solely because the employee has one of these CDC-identified “high risk” conditions. Under the ADA, such action is not allowed unless the employee’s disability poses a “direct threat” to his health that cannot be eliminated or reduced by reasonable accommodation.
- The EEOC has made clear that the “direct threat” assessment cannot be based solely on the condition being on the CDC’s list. Instead, employers must assess the “direct threat” based on this particular employee’s disability and the ADA’s requirements to 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.
- In the COVID-19 context, this assessment will likely include consideration of: (1) the severity of the pandemic in a particular area, (2) whether the employee’s disability is well-controlled, (3) his/her particular job duties, (4) the likelihood that the employee will be exposed to the virus at the worksite, and (5) measures that an employer may be taking in general to protect all workers.
- However, even if the employer determines a “direct threat” does exist in this situation, the employer still cannot exclude the employee from the workplace – or take any other adverse action – unless there is no way to provide a reasonable accommodation absent “undue hardship,” which is defined as “significant difficulty or expense.”
- In some instances, an accommodation that would not have posed an undue hardship prior to the pandemic may pose one now. For instance, pandemic-related repercussions such an employer’s sudden loss of income, the amount of discretionary funds available and whether there is an expected date that current restrictions on an employer’s operations will be lifted (or new restrictions will be added or substituted) may now be relevant to the undue hardship analysis.
None of this guidance addresses the related issue of what potential recourse employees may have against employers in this “COVID-19 return-to-work” scenario, however, which could include claims based on:
- discrimination and/or retaliation in situations where employers choose to reinstate only some of their former employees;
- employers penalizing employees for choosing not to return to work;
- an employers’ failure to provide reasonable accommodations for “high risk” employees;
- employer retaliation against whistleblower employees who reported unsafe work practices or conditions (although OSHA violations do not allow for private rights of action, other remedies may be available); and
- privacy claims related to employers’ mishandling of employee health data (such as COVID-19 test results et al.).
We are always here to help you if you have any questions about whether your employer is committing fraud or retaliating against you as a whistleblower, but for help with other employment issues, Georgia residents can find a directory of plaintiff’s employment lawyers here.