Maintaining the Confidentiality of Employee Health Information During the Pandemic

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In order to take the CDC recommended precautions to minimize the spread of COVID-19 in the workplace, employers must gather information about employee health. What can they gather, and what should they do with it? For answers, we look to the the Americans with Disabilities Act (ADA). The ADA prohibits employee disability-related inquiries or medical examinations unless they are job-related and consistent with business necessity. Generally, a disability-related inquiry or medical examination of an employee is job-related and consistent with business necessity when an employer has a reasonable belief, based on objective evidence, that:

  •  An employee’s ability to perform essential job functions will be impaired by a medical condition; or   
  • An employee will pose a direct threat due to a medical condition.

 This reasonable belief “must be based on objective evidence obtained, or reasonably available to the employer, prior to making a disability-related inquiry or requiring a medical examination.

Not surprisingly, the EEOC has concluded that based on guidance of the CDC and public health authorities as of March 2020, the COVID-19 pandemic meets the direct threat standard, which justifies making inquiries to determine if employees are infected with COVID-19.  Therefore, employers may ask employees who report feeling ill at work, or who call in sick, questions about their symptoms to determine if they have or may have COVID-19.  Currently these symptoms include, for example, fever, chills, cough, shortness of breath, or sore throat.

Employers may also receive information from employees regarding certain health conditions that may make them or close family members more vulnerable to complications from COVID-19.

What’s an employer to do with all of this health information? Keep it confidential.

The ADA requires that all medical information about a particular employee be stored separately from the employee’s personnel file, thus limiting access to this confidential information. An employer may store all medical information related to COVID-19 in existing medical files. This includes an employee’s statement that he has the disease or suspects he has the disease, or the employer’s notes or other documentation from questioning an employee about symptoms.

It is also a good idea to limit access to confidential employee health information to a few trusted management level employees, such as a Human Resources Manager or Safety Manager, and if your company has one, a company nurse. Remember, if someone doesn’t know about an employee’s health condition, she can’t use that knowledge as a basis to discriminate against the employee.

What happens if employees ask whether a certain employee has tested positive for COVID-19? The correct response is to say that you cannot give out confidential health information. Even if it is a small workplace, and folks may guess that the employee who has been out for 14 days may have COVID-19, do not be tempted to confirm any rumors.

Keep quiet, and keep washing those hands!

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2020 Kathleen J. Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

Home Alone: Current CDC Guidance on At-Home Isolation for Persons Infected with COVID-19

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Many states continue to see rising numbers of persons with positive COVID-19 tests, which means that workplaces in those states are dealing with employees who are infected with COVID-19. The CDC recommends that employees who test positive for COVID-19 (using a viral test, not an antibody test) should be excluded from work and remain in isolation if they do not need to be hospitalized. But for how long?

Recently, the CDC has updated the recommendations for discontinuing home isolation as follows:

Persons with COVID-19 who have symptoms and were directed to care for themselves at home may discontinue isolation under the following conditions:

  • At least 10 days have passed since symptom onset and
  • At least 24 hours have passed since resolution of fever without the use of fever-reducing medications and 
  • Other symptoms have improved.

[However, for patients with severe illness, duration of isolation for up to 20 days after symptom onset may be warranted. Consider consultation with infection control experts.]

Persons infected with SARS-CoV-2 who never develop COVID-19 symptoms may discontinue isolation and other precautions 10 days after the date of their first positive RT-PCR test for SARS-CoV-2 RNA.

Be aware that the recommended isolation time for employees who have been exposed to COVID-19 is longer than that for those infected with COVID-19. CDC recommends 14 days of quarantine after exposure based on the time it takes to develop illness if infected. Thus, it is possible that a person known to be infected could leave isolation earlier than a person who is quarantined because of the possibility they are infected.

Wash your hands, wear your mask, and be safe out there!

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2020 Kathleen J. Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

Handling Employees Who Refuse to Comply With a Workplace Mask Rule

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The CDC recommends the wearing of face masks as one way to slow the spread of the novel coronavirus, and 29 states and the District of Columbia have instituted or announced statewide orders requiring face coverings in public, with similar but varying requirements. Even states that do not have mask orders are strongly recommending that citizens wear masks in public to slow the spread of the coronavirus (Hello, Georgia). So it is not surprising that many private employers have enacted work rules that require employees to wear face coverings at work. But where there are work rules, there are always employees who just don’t want to follow them. To make matters worse, the issue of face coverings is highly politicized, and the internet and social media provide creative but usually invalid excuses for employees to use when they refuse to wear a face covering. So let’s talk about how a private employer can handle employee excuses for refusing to wear a face covering.

  • Wearing a mask violates my religion. This excuse requires further inquiry by the employer. Title VII requires covered employers to accommodate the sincerely held religious beliefs of employees. Therefore, in response to this statement, the employer can inquire into what sincerely held religious beliefs the employee ascribes to, and what part of that religion’s doctrine forbid face coverings. I am aware of religions that require face coverings, but not one that would forbid a person from wearing one, so this should lead to an interesting conversation.
  • I can’t wear a mask for medical reasons. The Americans With Disabilities Act generally requires a covered employer to provide a reasonable accommodation to a qualified person with a disability. Therefore, this type of statement should trigger the ADA’s interactive process through which the employer and employee work out a reasonable accommodation. The employer should obtain permission from the employee (in the form of a signed HIPAA release) to confer with the employee’s physician to discuss possible reasonable accommodations. Of course, all medical information should be kept confidential.
  • I can’t wear a mask because I can’t breathe and I will pass out. If this is due to a documented medical condition (perhaps COPD or asthma?), then the employer should start the interactive process discussed above. The employer may need to provide different types of masks that are more comfortable for those with breathing problems or mask free breaks during the workday. Otherwise, the employee needs to wear the mask; medical professionals wear masks all the time without passing out.
  • I don’t want to wear a mask because it makes me breathe in my own CO2. This excuse seems to based upon internet junk science and is not valid.
  • Wearing a mask violates my liberty rights. Just no. This is a not a valid excuse.
  • I can’t wear a mask because it makes me feel anxious or claustrophobic. If this excuse is based upon an actual diagnosis from a health care professional, the employer should start the interactive process discussed above. The employer can offer different mask options so that the employee can pick one that is most comfortable and perhaps provide mask free breaks during the workday. Absent a medical diagnosis, however, this may just be another way for an employee to say that they just don’t want to wear a mask.
  • I don’t care if you have a rule; I won’t wear a mask. At least this employee is being honest with you. However, the refusal to follow an employer’s reasonable work rule is considered insubordination and it should result in some kind of discipline. The employer should be consistent in the way it disciplines employees for violations. If you ignore some employee violations of a rule but enforce the rule against others, you are setting yourself up for a possible claim of discrimination. And failing to enforce a workplace rule is often worse than having no rule at all. So you will need to deal with the mask refuser appropriately.

As a final note–if you have a rule requiring face coverings at work–make sure that employees are not only wearing face coverings, but that they are wearing them correctly. The face covering should cover the nose and mouth. You may need to provide some gentle reminders to employees from time to time.

Stay safe!

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2020 Kathleen J. Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

Let’s Talk About Employee Speech in the Workplace

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How much control can an employer exercise over employee speech in the workplace?

As an initial matter, let’s talk about the First Amendment of the U.S. Constitution. The First Amendment protects speech against interference by the government; it does not protect speech against interference by a private employer. So employees of private employers cannot properly invoke their “first amendment rights” against any employer restrictions on their speech.

Private employers do need to be aware that Section 7 of the National Labor Relations Act (NLRA) prohibits interference with employee protected concerted activity, which includes workplace discussions about terms and conditions of employment (which is pretty broad, if you think about it). This would include employee conversations with one another about their wages, supervisors or work environment. In fact, if your Employee Handbook provides that employees cannot discuss their wages or salaries with other employees, that provision arguably violates Section 7 and may need to be removed.

These days, Section 7 may protect group chatter or actions about how the company is dealing with COVID-19 cases, such as the refusal by a group of employees to work in an area they believe is not properly sanitized, or the refusal by a group of employees to work near another employee who displays symptoms of COVID-19 infection.

If you thought that the National Labor Relations Act applied only to unionized workplaces, you thought wrong. Coverage under the NLRA is very broad and is based upon the dollar amounts of goods and services in interstate commerce, and different standards apply to different industries. It does not apply to independent contractors–but you’d better make sure that your independent contractors are properly classified under the most recent applicable standard. [Board law is a moving target that can change depending upon the political makeup of the Board members and Office of the General Counsel]. It is best to check with qualified labor and employment counsel to determine if the NLRA applies to your business and employees.

Other federal laws may protect employee speech about workplace safety or discrimination. However, knowingly false or malicious complaints about safety violations or discrimination may bit necessarily be protected.

So what kind of workplace speech can a private employer control? The kinds of things that have no place in the workplace, such as profanity, discriminatory slurs, or fighting words. Prohibiting talk about politics may be trickier–if employees are talking about how a politician or candidate may affect their work, job, or pay, it may be protected by Section 7.

Nevertheless, an employer can–and should–have a work rule that requires employees to talk with one another in a respectful way. In addition, it should have an effective open door policy or complaint procedure that employees can utilize if they have complaints about anything. As a practical matter, it is in a company’s interest to encourage employees to bring all complaints to the attention of the company rather than to a third party, such as a government agency or union organizer. And in the case of complaints about discriminatory slurs or harassment, such a procedure, if effective, can provide a defense against potential legal liability.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2020 Kathleen J. Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

Can An Employer Terminate An Employee Who Refuses to Wear a Mask at Work?

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As several states see dramatic increases in the number of people who test positive for COVID-19, employers must be very proactive in taking steps to protect workers and customers from the spread of the virus.  According to OSHA, employers should assess worker exposure to hazards and risks and implement infection prevention measures to reasonably address them consistent with OSHA Standards. Such measures could include promoting frequent and thorough handwashing or sanitizing with at least 60% alcohol hand sanitizer; encouraging workers to stay at home if sick; encouraging use of cloth face coverings; and training them on proper respiratory etiquette, social distancing, and other steps they can take to protect themselves. Employers should clean and disinfect frequently touched surfaces (e.g., door handles, sink handles, workstations, restroom stalls) at least daily, or as much as possible. 

OSHA generally recommends that employers encourage workers to wear face coverings at work if appropriate. Face coverings are intended to prevent wearers who have COVID-19 without knowing it (i.e., those who are asymptomatic or pre-symptomatic) from spreading potentially infectious respiratory droplets to others. This is known as source control.

Employers have the discretion to determine whether to allow employees to wear cloth face coverings in the workplace based on the specific circumstances present at the work site. For some workers, employers may determine that wearing cloth face coverings presents or exacerbates a hazard. For example, cloth face coverings could become contaminated with chemicals used in the work environment, causing workers to inhale the chemicals that collect on the face covering. Workers may also need to use PPE that is incompatible with the use of a cloth face covering (e.g., an N95 filtering facepiece respirator).

Note that cloth face coverings are not considered PPE.

While OSHA and the CDC encourage the use of face masks, the wearing or face masks has become very politicized, and there are many who simply refuse to wear them.  

So what happens if an employer mandates that all employees must wear face masks at work, and an employee refuses?  Well, if an employee refuses a reasonable directive of his or her employer, it is considered insubordination, and the employee can be disciplined. If the employee continues to refuse to wear a mask despite repeated discipline and warnings of the consequences, he or she can be terminated.  

It is also important for the employer to avoid getting into political or idealogical arguments with employees who refuse to wear face masks.  In response to the employee who wants to start an argument, simply state:  “we are requiring the wearing face masks to comply with OSHA and CDC Guidance as a way to protect the health of our employees [and customers].  I am sorry that you do not agree, but this rule applies to everyone.  Anyone who does not follow the rule will be disciplined.”

As I have discussed in past posts, an employer must be consistent in its treatment of employees so that it can avoid claims of discrimination. Don’t look the other way when you see that Thomas is not wearing his mask but write up Karen when she does the same thing.

In rare instances, an employee may have a medical reason for not wearing a mask. If an employee claims that he or she cannot wear a mask due to a medical condition, the employer should go through the interactive process with the employee and his/her health care professional to determine if there is a reasonable accommodation that will still prevent the potential spread of the coronavirus.  [And if the employee presents a “reasonable accommodation” card that they have printed off the internet, you can toss it in the trash]. 

Stay safe and healthy!

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2020 Kathleen J. Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

OSHA Has Issued Guidance for Returning to Work From COVID-19 Restrictions–Who in Your Workplace Will Make Sure That It is Implemented?

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As COVID-19 restrictions ease, businesses are reopening and employees are returning to work. To assist employers and workers in safely returning to work and reopening businesses deemed by local authorities as “non-essential businesses” during the evolving COVID-19 pandemic, on June 17, 2020, OSHA issued some new Guidance on Returning to Work for employers. OSHA tells us that this Guidance does not have the force of law; the “recommendations are advisory in nature, informational in content, and are intended to assist employers in providing a safe and healthful workplace.” Nevertheless, in the event that an employer is faced with an employee complaint to OSHA, a surprise OSHA inspection, or a lawsuit, that employer can only benefit by showing its documented compliance with OSHA’s own “recommendations.”

The Guidance identifies three Phases of reopening and recommended practices for minimizing the spread of COVID-19 for each of them.  It also recommends that during all phases of reopening, employers should implement strategies for basic hygiene (e.g., hand hygiene; cleaning and disinfection), social distancing, identification and isolation of sick employees, workplace controls and flexibilities, and employee training that are appropriate for the particular phase.

How does an employer show its documented compliance with OSHA’s recommendations? The starting point would be to identify a person or department that is responsible for keeping up with day to day compliance with the recommended strategies and practices. For larger companies, this is likely to fall within the responsibility of a safety manager or department. For smaller companies that do not have a dedicated safety professional, think about having someone designated as the “COVID Czar” or something like that (maybe COVID Coordinator if you prefer something less autocratic). Some of the potential responsibilities of the COVID Czar (or Coordinator):

  • Document employee training;
  • Document all precautions that the company has implemented to prevent the spread of COVID-19, such as taking temperatures of employees and visitors and regular cleaning and disinfecting of the workplace;
  • Gently remind others to maintain social distance in the workplace, follow respiratory etiquette, and regularly wash their hands;
  • Be a resource for those employees who are not comfortable telling others, particularly superiors, to please maintain social distance or sneeze into their sleeves;
  • Keep track of which employees are symptomatic, test positive, are under quarantine, or may have an underlying condition that makes them more vulnerable to COVID-19;
  • Ensure that those workers who have recovered from illness follow proper return to work procedures in accordance with CDC guidance;
  • If PPE is required for employees, make sure that there is an adequate supply of the appropriate PPE and that employees have been trained to use it properly;
  • Ensure that workers are not retaliated against for raising concerns about safety in the workplace; and
  • Keep everyone calm. 😊

Needless to say, the COVID Czar must be someone who can keep employee health information confidential.   They should also be someone who has enough confidence and authority to recognize and correct employees who are not following established safety procedures and practices.  

So–welcome back to work, and be safe out there!

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2020 Kathleen J. Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.