E.E.O.C.’s Expanded Guidelines on Screening, Testing and Pandemic Management

The Americans with Disabilities Act (ADA) includes an employee’s right to maintain the privacy of his or her medical information notwithstanding any ailment that might limit that person’s ability to perform essential job functions. However, the pandemic’s new “abnormal” quickly led the federal Equal Employment Opportunity Commission (EEOC) to relax those ADA confidentiality restrictions in the interest of thwarting widespread workplace disease transmission. See, Infection Protection; What an Employer Can Ask in a Pandemic (March 25, 2020).

From the past six months of fielding the public’s confusions over the agency’s initial guidelines, the EEOC has published a greatly expanded technical assistance, “What You Should Know About the ADA, the Rehabilitation Act, and COVID-19” (September 8, 2020) (New COVID Circular).

Roughly twice the length of the preceding version, this updated circular includes key direction, including for example:

• Continuing Workforce Testing: An employer may administer COVID-19 testing to screen workers initially entering the workplace as well as to regularly monitor possible infection among the workforce. New COVID Circular, section A.6. The EEOC’s previous approval of worker testing was limited to initial workplace entry only.
• Test Choice Prerogatives: Management may use tests “considered” accurate, but should regularly check the federal government websites for new information. New COVID Circular, section A.6. The previous guideline placed the burden on the employer to ensure tests were in fact “accurate and reliable.”
• Workplace Entry Criteria: An employer may ask all employees physically entering the workplace if they have been diagnosed with or tested for COVID-19. New COVID Circular, section A.8. The previous guideline was silent on the issue.
• Singling Out Employees for Screening: As long as based on objective evidence, managers may single out an employee to ask questions to determine if he or she has COVID-19 or to require his/her temperature taking or testing. New COVID Circular, section A.9. The prior guideline offered no view on this.
• Barring Uncooperative Employees from the Workplace: An employer may prohibit an employee from entering the workplace who refuses to have his/her temperature taken or to answer questions on COVID-19 infection, symptoms or testing. However, management should take care to first clarify and understand the worker’s grounds for refusal. It may be for example that the employee only needs reassurance on confidentiality of his/her health information or seeks some reasonable accommodation on how he/she is to be screened. New COVID Circular, section A.11. Again, previous guidelines did not address this scenario.
• Identifying COVID-Infected or -Suspected Employees: On report that a worker has COVID-19 or symptoms, managers can and should take proactive measures to prevent and limit the spread to co-workers, but only in a manner that protects the subject worker’s privacy to the extent possible.

Thus, the EEOC recognizes the necessity of interviewing the affected person for a list of people with whom he/she has had close workplace contact but advises against specifically identifying that COVID-affected person to those on the list. Instead, the employer should use a “generic descriptor,” e.g., “someone at this work location” has COVID-19. While it is inevitable that person’s identity will be known by some, the information should be on need-to-know only. New COVID Circular, section B.5. No prior EEOC guidance set forth advice on these matters.

Best practice should include close review of the New COVID Circular to determine any appropriate expansion in turn of an employer’s internal pandemic protocols.

See also:

• Workplace Pandemic Prevention – Model Employee Handbook and Forms Include Vital COVID-19 Protocols(September 3, 2020)
• Older Folks are People Too – Expanded Federal Pandemic Guidelines Allow Favorable Treatment for Aged 65-Plus Personnel (July 24, 2020)
• Thinking the Unthinkable – Expanding Federal Post-Pandemic Guidelines for Safeguarding Returning Personnel(April 23, 2020)

We continue to assist employer clients on pandemic-related policies, protocols and problem solving. For more information, contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Tim Bowles

September 18, 2020

E.E.O.C.’s Expanded Guidelines on Screening, Testing and Pandemic Management

E.E.O.C.’s Expanded Guidelines for Pandemic Management

The federal Equal Employment Opportunity Commission (EEOC) has again expanded its pandemic guidelines to address the effect of the Americans with Disabilities Act (ADA) and other workplace anti-discrimination laws on the national COVID vaccination campaign that now lies ahead.

A major “tension” point is between an employee’s right to maintain the privacy of his or her medical information and an employer’s responsibility to protect the health and wellbeing of its workforce. Since the declaration of COVID as a pandemic, the EEOC has relaxed ADA confidentiality restrictions to give business greater ability to thwart widespread workplace disease transmission. See, Infection Protection; What an Employer Can Ask in a Pandemic (March 25, 2020).

The agency’s December 16, 2020 updated COVID guidance offers new vaccination-related “do’s and don’ts,” including:

• An Employer May Ask Whether a Worker Has Been Vaccinated: The EEOC does not regard a vaccination as a “medical examination” because a shot to prevent an infection is not a procedure or test seeking the existence of a health-related condition. Thus, an employer is free to ask an employee if he/she has been inoculated.

Thus, an employer may ask an employee for proof of receipt of a COVID-19 vaccination. However, follow-up employer questions, such as asking why an individual has not received a vaccination, may elicit disability information subject to the pertinent ADA standard that the inquiry be “job-related and consistent with business necessity,” discussed below. Thus, the EEOC counsels that the “employer may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA.”

• An Employer Requiring Vaccination Must Limit Screening Questions: As pre-vaccination medical screening questions are likely to elicit disability or religious affiliation information, an employer requiring COVID inoculation may only ask such questions as are “job-related and consistent with business necessity.” Permitted questions must thus concern information that if not disclosed will “pose a direct threat to the health or safety” of that worker or others.

Thus, if a business is to make vaccination mandatory and management encounters an employee claiming she or he is unable to receive the inoculations due to a disability or religious belief/practice, the EEOC counsels that management can and should discuss the prospects of reasonable accommodation with that individual, e.g., prospect of performing tasks remotely, short of an undue hardship to company operations.

• An Employer Must Explore Possible Reasonable Accommodations for Those Declining Vaccination Due to Disability or Religion: Process is vital here. The EEOC stresses that management must be flexible and interactive, include determination “whether it is necessary to obtain supporting documentation about the employee’s disability and considering the possible options for accommodation given the nature of the workforce and the employee’s position. The prevalence in the workplace of employees who already have received a COVID-19 vaccination and the amount of contact with others, whose vaccination status could be unknown, may impact the undue hardship consideration. In discussing accommodation requests, employers and employees also may find it helpful to consult the Job Accommodation Network (JAN) website as a resource for different types of accommodations, www.askjan.org.”
• Disability-Related Vaccination Screening Questions Are Permitted in Two Circumstances: The EEOC advises there are two situations where disability-related screening questions can be asked without needing to satisfy the “job-related and consistent with business necessity” requirement: (a) an employer offering a voluntary vaccination program must also give the employee the choice of answering pre-screening, disability-related questions; and (b) if an employee receives an employer-required vaccination from a third party that does not have a contract with the employer (e.g., an independent pharmacy or other health care provider), that third party is free to ask pre-vaccination medical screening questions.
• Preserve the Confidentiality of Medical Information: The new guidance also reiterates that an employer must keep confidential any employee medical information obtained in the course of its vaccination program.
• Excluding an Unvaccinated Worker is the Last Resort: Ultimately, the guidance states: “[i]f an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace. This does not mean the employer may automatically terminate the worker. Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities.”
• Possible Leave for an Unvaccinated Worker: An unvaccinated worker who must be excluded from the workplace for lack of any possible reasonable accommodation may be eligible to take leave under the Families First Coronavirus Response Act (FFCRA), the Family and Medical Leave Act (FMLA), other state or local leave laws or the employer’s policies.

See also:

• COVID’s Constant? … Change; EEOC’s Expanded Guidelines on Screening, Testing, and Pandemic Management (September 18, 2020)
• Workplace Pandemic Prevention – Model Employee Handbook and Forms Include Vital COVID-19 Protocols (September 3, 2020)
• Older Folks are People Too – Expanded Federal Pandemic Guidelines Allow Favorable Treatment for Aged 65-Plus Personnel (July 24, 2020)
• Thinking the Unthinkable – Expanding Federal Post-Pandemic Guidelines for Safeguarding Returning Personnel (April 23, 2020)

We continue to assist employer clients on pandemic-related policies, protocols and problem solving. For more information, contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Tim Bowles

December 17, 2020

E.E.O.C.’s Expanded Guidelines for Pandemic Management

City of Los Angeles Extends Its “Safer at Home” Posting Requirements to May 15

On May 4, Mayor Eric Garcetti extended Los Angeles’s strict pandemic-driven health directive to May 15, signaling a gradual easing of restrictions from there if and as conditions warrant. It has been a remarkable evolution.

The city’s March 19, 2020 initial “Safer at Home” public order restricts public gatherings and effectively causing non-essential businesses to close their physical locations. Failure to comply with the order is a misdemeanor that can result in fines and/or imprisonment.

Certain business operations and activities are exempt for providing essential activities and services critical to the city’s health and well-being, including but not limited to • healthcare operations, • grocery stores, • gas stations, • auto repair shops, • financial institutions, • hardware stores, • plumbers, • electricians, • mailing and shipping services, • certain educational institutions to facilitate distance learning, • laundromats, • dry cleaners, • restaurants (via delivery service, pick-up service or drive-thru), and • transportation services.

On April 10, 2020, Mayor Garcetti revised the order to require all exempt essential businesses to adopt and post near their entrances a “Social Distancing Protocol” by April 15 for every facility they operate, a blank sample provided in Appendix A to that order. Essential businesses must also provide a copy of the Protocol to each employee performing work onsite. See, Keep It to Yourself; Essential Workers Must Cover Up and Stay Six Feet Apart (April 16, 2020).

That revised version also permitted non-essential businesses to conduct minimum basic operations including • inventory, • security, • custodial services, • payroll and employee benefits processing, and • any reasonable activity designed to maximize the ability for its employees to work remotely from their homes.

On April 27, 2020 and as further revised May 4, 2020, Mayor Garcetti required any non-essential businesses conducting minimum basic operations to keep their doors closed and locked to the public at all times and to post a sign on their main entrances stating that the business is closed to the public.

This locked-to-the-public version of the order remains in place until May 15, 2020 and may be extended or modified from there.

See also:

• Our New Normal Week Seven (May 1, 2020)
• The New Normal; Organizing or Post-Pandemic Workplace Revival (April 30, 2020)
• Are We Done Yet?; Workplace Return Planning (April 29, 2020)
• Thinking the Unthinkable; Workplace Return? (April 23, 2020)
• COVID-19 Safety Nets; Overview of CARES Act Small Business Loans (April 14, 2020)
• When the Show Must Go On; Key Protection for an Employee’s COVID-19 Diagnosis/ Symptoms (April 8, 2020)

For more information about these laws or other employment issues related to coronavirus, contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Cindy Bamforth

May 6, 2020

City of Los Angeles Extends Its “Safer at Home” Posting Requirements to May 15

As a close observer of the 2014-2015 Ebola outbreak from my West African work, the most precious commodity in the current pandemic is knowledge. Please consider this eight-minute COVID-19 video for a concrete understanding of the actual challenge we all face and the simple actions necessary to place this ordeal firmly in the rear view mirror.

We are thus holding firm to help our clients, readers, and communities with the needed information, education and counseling on the workplace impact of this rapidly changing scene. This includes an accelerated series of e-letters, most coming soon, covering major concerns, including:

• Telecommuting in Response to Coronavirus Outbreak (March 18, 2020);
  
• The federal “Families First Coronavirus Response Act,” making well over half of the American workforce potentially eligible for paid leave for the remainder of the year, going into effect April 2, 2020 (e-letter coming soon);
• Employer Coronavirus safety actions under the Americans with Disabilities Act (e-letter coming soon; in the meantime, see current federal guidelines);
• California’s accelerated and broadened unemployment benefits for Coronavirus-affected workers (e-letter coming soon; in the meantime, see current government summaries); and
• California employer tax reporting and payment relief actions (e-letter coming soon; in the meantime, see current government summaries)

We move through these times together. If you have specific questions regarding response to the pandemic’s effects on the workplace, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Tim Bowles

March 19, 2020

Employers are taking various steps to help offset the economic repercussions of the Coronavirus pandemic, such as providing employees with the use of paid sick leave, paid vacation time, and telecommuting.

A well-written telecommuting policy permits managers and rank-and-file workers alike to know where they stand. It should minimally address these points:

• Identifying the equipment to obtain and/or bring home as well as instructions for reimbursement of reasonable and necessary business expenses, such as cell phone minutes, office supplies, and utilities.
• How and when employees should record all hours worked, including all off-duty meal breaks and paid rest breaks.
• Cautioning employees to minimize background noise and distractions when interacting with others on work conference calls, etc.
• Instructing managers how to manage and adjudicate productivity remotely.
• Protecting any company equipment or confidential information from loss, damage, misuse or theft.
• Communicating the company’s expectations of privacy, confidentiality and safe workplace practices when working remotely. For example, consider including a statement that telecommuting is not a substitute for appropriate child care.

See also:

• Order Our 2020 Model Employee Handbook and Hire-to-Fire Forms (February, 2020)
• Are Shoes Reimbursable Business Expenses? (August, 2019)
• Ain’t No Such Thing as a “Free Call” (August, 2018)
• Wage Deductions (August, 2016)

For further assistance drafting a work-from-home policy or any other Coronavirus workplace concerns, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Cindy Bamforth

March 18, 2020

Company Must Pay Workers for Bag and Device Check Time

Like many companies, Apple has a practice of checking retail workers’ bags and personal electronic devices after they clock out as a theft prevention measure. In a February 2020 ruling, the California Supreme Court directed that Apple must compensate such employees for that time, including retroactive payment of amounts owed.

California’s Wage Orders require worker compensation for all hours worked, including all time an individual is under the employer’s control.

Apple argued the time employees waited for and then went through the process should not count as these workers supposedly had the choice to avoid the check by not bringing any bags or devices to the job. The court disagreed, finding Apple exerted control by requiring workers to remain on premises for a typical five to 20 minutes off-the-clock for a manager or security guard to open every bag, briefcase, backpack, and the like, unzip closed compartments, move or remove items, and review any personal devices. The court also observed employees could be disciplined if they did not comply and concluded the checks were clearly for Apple’s benefit.

On Apple’s “the checks are optional” contention, Chief Justice Cantil-Sakauye wrote: “The irony and inconsistency of Apple’s argument must be noted. Its characterization of the iPhone as unnecessary for its own employees is directly at odds with its description of the iPhone as an ‘integrated and integral’ part of the lives of everyone else. As [one of the briefs supporting the workers] aptly observes, ‘Apple’s position everywhere except in defending against this lawsuit is that use of Apple’s products for personal convenience is an important and essential part of participating fully in modern life.’ Given the importance of smartphones in modern society, plaintiffs have little true choice in deciding whether to bring their own smartphones to work (and we may safely assume that many Apple employees own Apple products, such as an iPhone).

The court contrasted Apple’s practice with pre- and post-work procedures where workers have a real option of not being under the employer’s control, such as not being required to wait for and riding a company-sponsored shuttle bus to and from the front gates of Disneyland.

Employers should take care not to require workers to do any tasks either before or after being on the clock. Best practices include consulting with employment counsel on such issues.

See also:

• Every Minute Counts (September 2018)
• Are Off the Clock Lawsuits Heading Into Overtime? (February 2010)

For more information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Helena Kobrin

Tim Bowles

March 12, 2020

Company Must Pay Workers for Bag and Device Check Time

Ignorance is No Bliss

What Employers Can Ask in a Pandemic

Through the confusion raging around the state-to-state spread of coronavirus disease 2019 (COVID-19) comes at least one federal agency seemingly prepared to effectively guide employers and employees alike to detect, correct, and ultimately protect.

Out of the 2009 “H1N1” pandemic, the Equal Employment Opportunity Commission (EEOC) issued “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act” (Guide), now updated along with a summary “What You Should Know About the ADA, the Rehabilitation Act, and COVID-19” (COVID Circular) publications to address their application to COVID-19.

The Guide explains a “pandemic” as a global “epidemic,” identifying five influenza pandemics over the last 100 years: ● the deadly “Spanish Flu” of 1918; the milder ● “Asian” and ● “Hong Kong” flus of the 1950s and 1960s; ● the 2003 SARS outbreak; ● the 2009 H1N1 flu; and ● COVID-19, declared a pandemic on March 11, 2020.

The EEOC is responsible for enforcement of the 1991 Americans with Disabilities Act (ADA), protecting disabled workers from discrimination. In normal times, the ADA’s guidelines overwhelmingly seek to protect employee privacy by barring managers from directly asking about possible illness, ailments, diagnoses, sending employees home for certain symptoms, or taking their temperatures. These of course are no longer normal times. Finding COVID-19 to constitute a “direct threat” (“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 Guide and Covid Circular have rewritten the rules to place employer and co-worker need to know to the fore.

Thus, managers may now make disease-related inquiries and impositions the ADA guidelines would otherwise condemn in any milder context. The Guide now confirms employers may ask questions and require compliance deeply invasive of individual worker privacy. For example, in these pandemic “direct threat” conditions the EEOC now permits an employer to:

• Send an employee home who displays influenza-like symptoms (for example, fever, chills, cough, shortness of breath, or sore throat). That the worker may be afflicted with no more than the common cold or not contagious is irrelevant;
• Ask an employee who is feeling ill or calling in sick if he or she is experiencing influenza-like symptoms, provided management maintains all such acquired illness information as a confidential medical record. In normal times, employers would be limited to asking about an evidently ill employee’s ability to fulfill his/her job duties, not about the particular afflictions or symptoms that person was experiencing;
• Measure worker body temperature, again as long as management maintains the information obtained as a confidential record. This action is normally barred as it’s considered a medical examination;
• COVID-19 questions to employees returning from travel: Under the current emergency, an employer need not wait until that person has developed symptoms to ask questions about exposure to COVID-19 influenza during the trip; and
• Questions to employees on susceptibility to influenza: As perhaps the greatest intrusion clearly prohibited during non-pandemic times, if a public health official assesses pandemic conditions to be “severe” (as the officials at every level have already done with COVID-19), then an employer may have justifiable grounds to ask a worker for any health condition that makes him or her more susceptible to influenza and to even require medical examinations of asymptomatic employees to identify those at higher risk of complications.

California’s Department of Fair Employment and Housing (DFEH) issued similar but in some instances more restrictive standards on March 20, 2020. For example, the DFEH’s guidance does not address employer ability to ask an asymptomatic employee if she/he has any at-risk condition or to require any such asymptomatic employee to submit to a COVID-19-related medical examination.

With federal, state and local responses to the current crisis rapidly evolving, it is a good idea to consult with experienced legal counsel for assistance on COVID-19 related personnel decisions.

Best employer practices can and should also include policies and procedures that place workers on notice of the above management prerogatives under pandemic conditions. All concerned are then informed of the otherwise unusual rules and lessened privacy protections demanded by a public health threat that discriminates in favor of no-one.

See also:

• Telecommuting in Response to Coronavirus Outbreak (March 2020);
• Holding Firm (March 2020)
• Federal Coronavirus Workplace Relief (March 2020)

For more information about these laws or other employment issues related to coronavirus, contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Tim Bowles

March 25, 2020

California’s Fair Employment and Housing Act (FEHA) and its federal counterpart, the Civil Rights Act of 1964, are designed to protect employees from unlawful discrimination.

The FEHA also established the Department of Fair Employment and Housing (DFEH) to investigate, mediate and prosecute workplace discrimination complaints. It is the largest state civil rights agency in the nation.

California was not always known for its vigorous anti-discrimination efforts. In 1850, the new state legislature rescinded Native Americans’ claims on land and other rights of citizenship and banned African Americans from homesteading public land, sending their children to public schools and using public transportation. In the 1920s and 1930s, California condoned the restricted sale or occupation of real property on the basis of race, ethnicity, religion and social class.

Anti-discrimination bills failed to pass California State Legislature in the mid-1940s and early 1950s. The FEHA and its companion Unruh Civil Rights Act (named for its author, Jesse Unruh) became law in 1959, together barring discrimination in the workplace, housing and business establishments on the basis of race, religion, national origin and ancestry in the workplace and declaring all Californians “free and equal.” These laws now protect some 14 classifications against discrimination, including race, color, ancestry, national origin, religion, creed, age (over 40), disability (mental and physical), sex, gender (including pregnancy, childbirth, breastfeeding or related medical conditions), sexual orientation, gender identity, gender expression, medical condition, genetic information, marital status, and military and veteran status.

A 1992 amendment to the FEHA permitted actual damages, punitive damages and reasonable attorneys’ fees to be awarded to successful plaintiffs in discrimination law suits.

The California Family Rights Act (CFRA) became law in 1993, granting “secure leave” rights to employees in companies with 50 or more on payroll for the birth of a child, during placement of a child in the employee’s home for adoption or foster care, for the serious health condition of the employee’s child, parent or spouse, and for the employee’s own serious health condition.

The New Parent Leave Act (NPLA) (2018) expanded the reach of CFRA by requiring businesses with 20 or more on payroll employees to provide eligible employees job-protected leave for the birth of a child or the placement of a child for adoption or foster care.

The DFEH is responsible for enforcement of all these state laws.

Each year seems to bring new developments in this critical area. Accordingly, California businesses with five or more employees are now required to train managers (minimum two hours) and all other workers (minimum one hour) on discrimination, harassment and retaliation prevention and handling, beginning in 2020 and every two years afterwards. New hires must be trained within six months of employment. See, Prevent No Consent Torment (January, 2020)

For further assistance in the scope and application of these laws, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin. For more information, costs or to schedule an on-site training contact our office manager Aimee Rosales at (626) 583-6600 or officemgr@tbowleslaw.com.

See also:

• New Year’s Resolution: Get Smart(er) (December, 2019)

Tim Bowles

March 5, 2020

A concept born with the 1800s Industrial Revolution , “at will” employment is proclaimed to survive in every American state except Montana as the right of either employer or employee to terminate their relationship for any or no reason at any time, with or without advance notice.

Yet, the principle has changed significantly over the past century.

“At will” employment originally included an employer’s unqualified right to fire anyone, “at will,” for any reason. Addressing the realities of unequal bargaining power between management and rank-and-file workers, the 1935 National Labor Relations Act banned terminating employees for their union membership or other pro-union support. In the same period, organized labor’s growing influence established standing employment contracts in key industries that required “good cause” justification for a union member’s termination. Similar “good cause” requirements have evolved to protect government employees.

The landmark Civil Rights Act of 1964 signaled further (and overdue) protections against management’s unquestioned abilities to end employment relationships, making it illegal to terminate for the race, color, sex, national origin or religion of the worker. The Act’s principle of “classifications” protected from workplace discrimination has since grown to an extensive list under federal and state laws. These include the federal Age Discrimination Employment Act shielding employees 40-plus years old and the Americans with Disabilities Act similarly safeguarding disabled workers otherwise qualified to competently perform assigned labors.

Thus, while “at will” is still the presumed employment relationship in California and many other states, termination for “any reason” no longer means what it did 100 years ago. Termination for “any reason except those found by Congress, a state legislature or the courts to be an illegal reason” would be more accurate.

February 26, 2020