Employers can take temperatures and ask about symptoms but they also have to provide some COVID-related paid leave through 2020.
Be flexible and ready to adapt to changing conditions. That’s the advice from two lawyers and a human resources professional about what to expect as offices reopen and possibly close again. As coronavirus cases spike in some cities and level off in others, employers and employees must be ready to make decisions that match the local situation.
“My take is that we all have to be in it together,” said Karin Cogbill, an employment lawyer at Hopkins & Carley, a law firm in Silicon Valley. “We all need to be flexible and keep in mind that we are doing our best to work together through this.”
Lynee Luque, the head of people at Envoy, said the company has open sourced its planning process and shares weekly updates with employees in all-hands meetings.
“We get on Zoom and share what we know, including whether our plan still works or if we are shifting,” she said. “No one team has a blueprint or direct experience with this.”
SEE: COVID-19 workplace policy (TechRepublic Premium)
Luque manages human resources, IT recruiting, and facilities at Envoy. She has convened a cross-functional team that meets twice a week for an hour to discuss the latest plan. This includes a regional representative from
The Equal Employment Opportunity Commission (EEOC) and the US Department of Labor have provided some new guidance about the coronavirus epidemic. Most companies are figuring out the operational details on their own and learning from each other.
Here is a review of what employers can and can’t ask of employees as companies debate whether to bring people back to the office or keep the doors shut until 2021.
Expect temperature and health checks
The EEOC has ruled that employers can take employees’ temperatures as long as the information is kept confidential. Employers can ask about exposure to the virus when an employee returns from a trip. Employers also can require infection control practices at the office, such as handwashing.
Because there are few federal specifications about how to bring people back to the office, states, counties, and cities have come up with their own rules about masks and other preventive measures. Cogbill said that companies should start with county health departments to understand local requirements first. She also recommended checking out state COVID-19 resources pages, and the Department of Labor and the Occupational Safety and Health Administration guide on returning to work.
Cogbill suggested forming a reopening team to form a plan and set guidelines.
“Companies that have gone to a big giant workspace will have to think about spacing people apart or put up dividers and figure out what that is going to look like,” she said.
Luque is testing Envoy Protect at the company’s office spaces and with clients. The system manages a new process for protecting health and safety at the office during the pandemic. The process has several steps.
First, employees register online if they plan to come into the office on a particular day. The registration system closes when the office hits capacity. The next step is filling out a health questionnaire upon arrival at the office. Envoy’s first product was a visitor check-in system which supports touchless entry as part of the Protect service.
Envoy is also requiring masks and has a head-start on contact tracing due to the registration process.
“We’ll have a digital record of when everyone is in the office,” Luque said.
Envoy is also working with Density, a people counting system that monitors office capacity without cameras.
“During the day, if we see the capacity is hit, we send an alert,” she said.
Luque said that Envoy built Protect with employee privacy in mind.
“We clearly communicate what information we are gathering, we are not storing answers about health questions, and there is a limited number of people who can see this information,” she said.
Chiara Portner, a privacy lawyer at Hopkins & Carley, said that companies should follow fair information practices around health data collected related to COVID-19.
“The main idea is to provide notice about what data you’re collecting and be transparent about what you’re doing with the data,” she said.
Privacy protections from the CCPA
Generally speaking, employees have no expectation of privacy at work, Portner said.
“Companies either don’t have privacy policies or they are vague in the employee handbook,” she said.
California’s Consumer Privacy Act (CCPA) offers a few additional protections. If a company is subject to the law, employees should receive a notice of privacy practices, including information about any health data collected.
“Companies need to provide a privacy notice and then think about the security of the data and where they’re going to store it as well as what vendors might get access to that information,” she said.
No questions about chronic health conditions
THE EEOC has defined the coronavirus as a direct threat, which means that the virus represents a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.
The EEOC also ruled that employers are not allowed to determine who comes in the office and who continues to work from home, based on health conditions or age.
“If the employee has a preexisting condition, they should speak with their employer about it and I tell my clients to evaluate these issues on a case-by-case basis,” Cogbill said. “Employers should be as flexible as they can in addressing employee concerns.”
Employers should consider these questions when determining how to address a situation like this:
- What are the individual circumstances in play?
- Is the employee entitled to a leave of absence?
- Does the person have a disability that needs to be accommodated?
- Is there a potential to provide extended leave or to allow them to work from home?
Luque from Envoy said that her company has addressed this issue in return to work guidelines issued to all employees.
“We established a set of guidelines for employees so that they can notify us if they have any type of condition that would make it more risky to come in or if they need an accommodation,” she said. “We found that one person’s partner works in a hospital and is exposed to the virus on a daily basis.”
The ADA prevents employers from asking employees about health conditions such as a compromised immune system or a chronic health condition, such as diabetes. To understand whether an employee is facing extra complications due to the virus, employers can describe several complicating factors and ask if any of those conditions affect an employee’s ability to get to work. This list covers childcare, public transportation, dependent care, and high-risk categories such as age, pregnancy, and underlying chronic conditions.
Cogbill said that the elephant in the room during the return to the office debate is childcare.
“What do we do with working parents?” she said.
Congress did include some paid leave requirements for parents who need to care for children who are ill or at home because schools are closed. The Family First Coronavirus Response Act: Employee Paid Leave Rights requires that employers provide:
- Two weeks of paid sick leave at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined and/or experiencing COVID-19 symptoms and seeking a medical diagnosis.
- Two weeks of paid sick leave at two-thirds of the employee’s regular rate of pay because the employee is unable to work because of a bona fide need to care for an individual subject to quarantine or to care for a child (under 18) whose school or child care provider is closed or unavailable for reasons related to COVID-19.
- Up to an additional 10 weeks of paid expanded family and medical leave at two-thirds of the employee’s regular rate of pay where an employee, who has been employed for at least 30 calendar days, is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed, or unavailable for reasons related to COVID-19.
The provisions last through Dec. 31, 2020 and apply to public employers and private employers with fewer than 500 employees.