By: Laurie A. McCarthy, Esquire
As many states are reopening their economies and employees are heading back into the workplace, there is a lot of uncertainty about how to keep workers safe, especially those who may be at higher risk due to age or a medical condition. To address the concerns of employers and employees alike, the Equal Employment Opportunity Commission (“EEOC”) – the federal agency responsible for interpreting the federal anti-discrimination laws – has issued “Return to Work” guidance. Here’s a helpful summary.
Regarding all employees, employers may:
- ask an employee if he or she is experiencing COVID-19 symptoms (e.g., cough, shortness of breath, fever, etc.)
- prohibit an employee who is experiencing COVID-19 symptoms from returning to work
- ask whether an employee has had contact with anyone who the employee knows has been diagnosed with COVID-19 or who may have symptoms associated with COVID-19
- prohibit an employee from returning to work if he or she refuses a temperature screening
Regarding “high-risk” employees:
- employers are not required to take any proactive measures specific to high-risk employees unless and until the high-risk employee requests a reasonable accommodation; if an employer does so without that request, taking these proactive measures may be viewed as unlawful discrimination
- employers may not prohibit a high-risk employee from coming to work because they may contract COVID-19
- employers must first consider whether the employee’s condition poses a “direct threat” (i.e., a “significant risk of substantial harm”) to his or her health that cannot be eliminated or reduced by a reasonable accommodation
- employers must consider all possible
accommodations before the person is “excluded” from work. Such accommodations must include
consideration of leave, telework, or reassignment to a new job that is safer.
- The EEOC has provided several examples of
reasonable accommodations, such as:
- providing additional or enhanced protective gowns, masks, gloves, or other personal protective equipment (PPE) beyond what the employer typically provides to other employees returning to the workplace.
- crafting additional or enhanced protective measures, such as erecting barriers between the employee and his or her co-workers or increasing the physical distancing between the employee and his or her co-workers.
- repositioning the employee’s workstation away from other employees’ workstations.
- eliminating non-essential job functions of the employee; and
- temporarily modifying work schedules such that the employee can work at off-peak hours.
- The EEOC has provided several examples of reasonable accommodations, such as:
- according to the EEOC’s analysis, taking any sort of adverse action without first determining whether reasonable accommodations can be provided would constitute unlawful discrimination.
The EEOC’s “Return to Work” addresses return-to-work issues in connection with the COVID-19 as they relate to federal anti-discrimination laws enforced by the EEOC. We anticipate employers and employees will encounter many unprecedented issues under Pennsylvania law as people gradually return to the workplace. Pennsylvania is still under a stay-at-home order through June 4, 2020. But we are closely monitoring COVID-19-related governmental orders, regulatory guidance, and CDC recommendations, and we are here to help guide you through the complexity of safely reopening your business and returning employees to the workplace when it is determined to be safe to do so.
The Law Firm of DiOrio & Sereni, LLP is a full-service law firm in Media, Delaware County, Pennsylvania. We strive to help people, businesses and institutions throughout Southeastern Pennsylvania solve legal problems – and even prevent legal problems before they occur. To learn more about the full range of our specific practice areas, please visit www.dioriosereni.com or contact Laurie A. McCarthy, Esquire at 610-565-5700 or at [email protected]
 The Centers for Disease Control and Prevention (CDC) has flagged older adults and people of any age who have serious underlying medical conditions as being at higher risk for severe illness from COVID-19.
 The “Return to Work” guidance was issued on May 5, 2020 and updated on May 7, 2020, with a focus on how employers should handle the return to work of “high-risk” employees.
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