As businesses plan for reopening, any COVID-19 testing of employees must be done uniformly or it could result in litigation under the American with Disabilities Act (ADA) or California’s fair employment statute, a law professor said.
“As far as the ADA and testing goes, the EEOC [Equal Opportunity Employment Commission] has been willing to allow testing for the virus, not so much antibodies but for the virus itself,” Thomas Lenz, a lecturer at USC Gould School of Law told the Northern California Record. “One of the key things for employers is they test on a consistent basis so the manner is not going to be alleged to be discriminatory, by focusing on one protected category of people rather than another.”
Testing is historically one of the things that can be challenged in court, Lenz said.
“This is the time for employers to reassess their policies and to be prepared to document their actions and reasons because the rules are changing so fast, and it would build a record in the event a claim is filed later,” Lenz said. “It’s important to be able explain what you did and why. Good documentation with consistent policies would be best for all involved. Communication between employees and employers is key right now, and the more that communication is emphasized, the more people can develop expectations that will minimize conflict in the workplace.”
Keeping a workplace safe is critical, Lenz said. “It’s the number one concern in returning to the office, to the factory, whatever they happen to be.”
A gamut of workplace laws can apply to issues arising from the COVID-19 pandemic.
“An employer that goes overboard in a situation where it’s not really relevant or necessary, they are putting themselves at risk as well,” said Lenz, who is also a partner handling labor and employment law at Atkinson, Andelson, Loya, Ruud & Romo.
“Employers want to return people to the workplace if possible, but in the process of returning, people may become afraid of exposure, inadequate social distancing, or where other employees have traveled. Maybe they express concerns or complain to CAL/OSHA, and engage in a walkout. They could be protected. Employees have the right to walk out under the NLRA [National Labor Relations Act],” Lenz said. “And there are also provisions under California law which relate to CAL/OSHA, which preclude employers from taking action against someone who has made a complaint.”
Issues also may arise with coordinating various leaves of absence, compensating workers for any time spent on testing required by the employer, and ensuring employees are taking proper meal breaks even when working from home.
“There are wage and hour issues that flow through all this,” Lenz said. “So there are liabilities in the waiting for employers who are not maybe monitoring these issues carefully.”
Employers may walk into overtime liability without even realizing it.
“It’s incumbent for businesses to set guidelines and have good communication to get through these issues with minimum friction,” Lenz said.
The ADA can apply to many different job actions, and employers need to apply consistent rules as equally as possible.
“The issues I think as we go through the COVID pandemic require solutions that are going to avoid infringing on individual rights, of people who are disabled, and perceived to be disabled. It’s very individuated based on specifics of the situation,” Lenz said. “Set strong consistent policies and look at the facts when situations and questions arise, the details always seem to matter.”
Amid the pandemic, employers may face decisions that address an employee’s potential exposure level.
“What is the employee’s job, what are they required to do, what is their exposure in and out of workplace? You can change people’s duties, do things to limit their exposure,” Lenz said. “Employers can’t control what an employee does off the clock. There are those are things they may wish didn’t happen. For example, perhaps an employee goes to a family gathering and wanders around [without taking precautions].
Following some of these situations, the employer may want the employee to work from home.
“You can’t tell them don’t go [to the gathering], but you can say you’re not allowed back until you’ve quarantined, or work from home,” Lenz said.
There also are regulations that apply in different jurisdictions.
“Depending on where you do business and where a company serves customers, it’s important to study those rules, know what you’re getting into, they may apply to you,” Lenz said. “If it’s working in a different city like San Francisco, you could find yourself having different standards for pay or sick leave situations. So it’s important to know before you begin rather than stepping into something and trying to find your way out.”
And with all the regulations to consider during the pandemic, uniform application is key.
“If you’re going to reopen and test your workers, make sure you have consistent plans that don’t arguably appear to be discriminatory or inconsistent,” Lenz said.