Navigating the return of employees to the workplace

The last thing any employer wants to do is start a new coronavirus hot spot in the workplace. 

With many parts of the United States and Europe still under stay-at-home orders, the idea of returning workers to the workplace may seem like a faraway dream. The process will likely be uneven and frustrating, full of starts and stops.

When workplaces reopen, employers will have to navigate a number of legal and ethical quandaries, employment attorneys say. That’s especially true for employees who tested positive for coronavirus or who experienced symptoms of the infection but weren’t tested.

“It used to be that you needed a note from your doctor to return to work. Employers could hang their hat on that,” said Mark Neuberger, an employment attorney at the firm Foley & Lardner. “In this crazy environment, it’s tough to get a doctor to sign off.”

Employers still have the right to tell an employee it’s too soon to return to work.

“I think employers have to be overly cautious,” he said.

So are there any screenings worth considering? 

The most common and easiest to implement would be to require all returning employees to submit to a touchless temperature screening before being allowed to enter the workplace.

“Before the pandemic, most people would have found this ridiculous and it could have spurred a lawsuit,” Kwabena Appenteng, a shareholder in Littler Mendelson’s Workplace Privacy and Data Security Practice Group, said of screening employees for fevers. “Now, it’s recommended by the CDC (Centers for Disease Control and Prevention) and numerous states and counties, and many of our clients have instituted this screening method.”

Even then, taking temperatures might not catch all infections. One-fourth of people infected with coronavirus might not express symptoms like a temperature, CDC Director Robert Redfield said in an interview.

Pre-pandemic, the U.S. Equal Employment Opportunity Commission (EEOC) considered taking a temperature a medical procedure, which could violate the Americans with Disabilities Act. Asking medical questions could also constitute a violation, the EEOC said.

But the EEOC has since loosened its recommendations on temperature checks and medical questions during a pandemic, according to a March 18 bulletin. During a pandemic, it is permissible to take an employee’s temperature and to ask employees whether they are experiencing any of the symptoms of a coronavirus infection, such as “fever, chills, cough, shortness of breath, or sore throat.”

Those recommendations could change, however.

“Employers should remember that guidance from public health authorities is likely to change as the COVID-19 pandemic evolves. Therefore, employers should continue to follow the most current information on maintaining workplace safety,” the EEOC said.

Other employers are considering screening for coronavirus antibodies in an employee’s blood. Health experts have not yet studied antibodies long enough to know if having them shields a person from reinfection, however.

Appenteng says employers would do well to consider how long they intend to implement coronavirus screening protocols like temperature checks, health questions, or blood testing, given that not all protocols will remain permissible as the pandemic subsides.

“That might drive what you choose,” he said.

Employers should also be wary of discrimination against sick employees who return to work.

According to a recent coronavirus workplace survey of over 900 employers by the employment law firm Littler Mendelson, “most respondents were extremely to moderately concerned (44 percent) or somewhat to slightly concerned (39 percent) about unintentionally discriminating against members of a protected class or giving rise to discrimination claims. However, this issue ranked lowest in the list of concerns posed to respondents and 17 percent indicated not being concerned at all, suggesting that this is an area that employers should continue to be mindful of in this rapidly evolving situation.”

To help avoid discrimination, employers should only collect the minimal amount of health data necessary to allow an employee to return to work, said Hilary Wandall, senior vice president, privacy intelligence and general counsel at TrustArc, a compliance and risk management consulting company. That data should be shared only with other employees who need to know and should be stored in a place that is separate from company data that is accessible to other employees.

“It’s very important for compliance officers to think about privacy obligations,” she said. “You want to be transparent about the processes” but not inadvertently share private employee health data with other employees, she said.

Some industries are learning on the fly

Sections of the retail industry—supermarkets, pharmacies, liquor stores, and some department stores—that have remained open throughout the pandemic may offer cautionary tales.

The family of a Walmart employee killed by coronavirus in Illinois sued the retail giant, claiming the company did not do enough at his workplace to shield him from contracting the virus.

The United Food and Commercial Workers International Union, which represents over 900,000 grocery workers, announced this week that 30 union members have been killed by coronavirus and nearly 3,000 have been infected.

“Since the beginning of the outbreak, these workers have been on the front lines of this terrible pandemic, said UFCW president Marc Perrone in a statement. “While tens of millions of Americans were told to work from home for their safety, grocery store and food workers have never had that option.”

Stop & Shop, a 400-store supermarket chain stretching from Maine to New Jersey that is owned by Dutch conglomerate Ahold Delhaize, has had at least four employees test positive for coronavirus, according to a Channel 10 (Rhode Island) news story. The company did not return a request for comment.

Jim Carvalho is the business agent and political director for UFCW Local 1445 in Dedham, Mass., which represents approximately 10,000 Stop & Shop workers in Massachusetts.

Carvalho said Stop & Shop offers two weeks of paid leave to employees who are out of work due to coronavirus. Management stays in contact with the employee’s doctor during the leave, he said. There are no screenings for employees who have recovered and can return to work, Carvalho said.