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Small Business: Questions employers can ask workers during pandemic 

Allyson Nuss, left, owner of The Social Hound

Allyson Nuss, left, owner of The Social Hound Dog Park and Hotel in East Setauket, with Tara Triebig, a manager, behind the sneeze guard on the reception desk. Credit: Julie Sullivan

COVID-19 has changed the way workplaces operate perhaps forever, which makes reopening for many businesses an arduous task.

Given that, the U.S. Equal Employment Opportunity Commission has issued updated guidance to help businesses keep their workplaces safe and navigate through potentially murky waters including their ability to ask employees medical questions, require personal protective gear and conduct testing.

“The EEOC guidance provides a safe harbor for employers,” says John Diviney, a partner in the employment and labor practice at Rivkin Radler LLP in Uniondale.

It reaffirms and allows employers to make the type of medical/health-related inquiries the Centers for Disease Control and Prevention, New York State, and Occupational Safety and Health Administration are requiring, he says.

For example, under the guidance, it’s lawful to ask employees about symptoms associated with COVID-19 such as fever, cough, and sore throat, he says.

In fact, as per New York State Department of Health guidance, employers are required to screen employees for COVID symptoms, which could be via verbal screening, says Diviney.

Under the guidance, it’s also OK to send employees home if they display COVID-symptoms, he says.

In the past, under workplace anti-discrimination laws like the Americans With Disabilities Act it was taboo to ask certain medical questions, says Doug Rowe, a partner at Certilman Balin Adler & Hyman in East Meadow.

“Employers were always fearful of asking about symptoms and now it’s lawful to ask,” he says.

But that doesn’t open the floodgate to ask other non-COVID-19 medical questions, Rowe says, noting they are “very specific COVID-19-related guidelines.”

Among guidance, employers may also measure an employee’s body temperature, require employees to wear personal protective equipment (i.e. masks) and test an employee before entering the workplace, says Michael Marra, co-managing partner of Fisher Phillips’ New York City office. For full guidance, see https://tinyurl.com/ydahfkot.

That doesn’t mean employees won’t protest such actions, but whether they can be terminated isn’t cut and dry, he says.

“If an employee refuses to submit to these legal requests meant to create a safe work environment, it is appropriate for the employer to not permit that person to perform services at the worksite,” says Marra. “Whether it will be defensible to terminate that person’s employment will depend on a more fact-specific inquiry regarding the reasons for the refusal, the needs of the workplace and requirements of the position, and other issues specific to that employee.”

Depending upon the circumstances, if the employee isn’t allowed on the worksite and unable to performhis or her job functions it could result in termination provided there aren’t circumstances that require the employer to provide a reasonable accommodation/alternative, Rowe says.

Employers must consider reasonable accommodations if there is say a medical condition like the inability to breathe with a mask because of a respiratory condition, he says.

Beyond that, there are further considerations regarding testing, Marra says.

While testing is allowed, the EEOC cautions employers to ensure the tests are accurate and reliable, he says, adding there is the danger of faulty tests.

Some larger businesses are adopting virus screening tools like symptom checking apps, but those are cost prohibitive for small businesses and could tread in uncertain territory since guidance doesn’t lay out specific technologies, experts say.

Also state guidance prohibits keeping individual temperature data, says Diviney, who doesn’t believe small businesses will rush to adopt these advanced technologies.

"Current guidelines are not specific [on allowable technologies] but legal uncertainties exist over their use [i.e. privacy concerns] and there are cost factors and the necessity of the technology is unclear particularly in the long term for small businesses," says Diviney.

Probably the least intrusive is taking daily temperatures, says Rowe, noting employers should proceed with caution if considering more invasive technologies.

At ALA Scientific Instruments Inc., a Farmingdale biotech firm with 11 employees, an infrared thermometer is available at a designated cleaning station, vice president Andy Pomerantz says.

They are providing three different type of masks to employees; have multiple cleaning materials readily available including anti-bacterial spray; and have restrictions in public areas like no more than two people allowed in the break room at any time, he says.

They are also working with their payroll company on an online portal where employees daily could certify they are symptom-free, says Pomerantz.

Whatever measures employers take, communication is key, says John Coverdale, president of The Center for Workplace Solutions, a human resources management firm in Bayport.

“Employees want to know what their employer is doing to keep them safe,” he says, advising employers to discuss the guidance with employees. “You’re introducing the realities of the moment.”

The guidance will probably fall short in some areas, says Coverdale, noting employers must prepare for the fact that “employees will have a range of anxieties now … even returning employees are not going to be the same people, which makes it critical for employers to re-establish trust.”

Allyson Nuss, owner of The Social Hound Dog Park and Hotel in East Setauket, which recently reopened, says its 10 employees have been very accepting of the safety protocols the business established.

This includes having sneeze guards at the register, curbside drop-off and pickup upon customer request, and masks and gloves for customer-facing employees, says Nuss, noting she and staffers were all on the “same page” regarding employee and customer safety.

EEOC guidance also addresses hiring

  • An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all employees in similar positions.
  • An employer can delay the start date of an applicant who has COVID-19.
  • An employer can take an applicant's temperature as part of a preemployment medical exam if it has made a conditional offer of employment.

Sources: Michael Marra of Fisher Phillips; U.S. Equal Employment Opportunity Commission

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