Updates From the Agencies: COVID, COVID, COVID and Then Some

It is no surprise that COVID-19 matters have preoccupied federal agencies in recent months.

Among the key agency developments are updates from the U.S. Equal Employment Opportunity Commission (“EEOC”) and the Department of Labor (“DOL”).

On June 17, 2020, the EEOC released supplemental guidance regarding employer best practices during the COVID-19 pandemic. The EEOC’s new guidance addresses and clarifies issues relating to mandatory screening and exclusion of employees from the workplace. In its guidance, the EEOC reminds employers about their obligation to protect the confidentiality of employees’ medical information and avoid COVID-motivated harassment in the workplace, in particular against employees who are or are perceived to be Asian. Together with previous guidance, here is what employers should know.

Mandatory screening:

With regard to screening, the EEOC indicates that employers may mandate screening before employees enter the workplace, but should continue to rely upon CDC guidance and input from public health authorities in doing so.

Employers may, for instance, take the temperature of all those entering the workplace or require employees to self-report any COVID-related symptoms. When administering tests, employers should ensure the tests are accurate and reliable. Notwithstanding negative test results, employers should still require that employees observe infection control practices.

The ADA prohibits employers from requiring COVID-19 antibody testing before allowing employees to return to the workplace. Relatedly, exclusion of an employee from the workplace due to an employee’s refusal to submit to antibody testing is prohibited. Employers may find consolation in the fact that, according to the CDC, it cannot be assumed that individuals who test positive for COVID-19 antibodies will not contract COVID in the future.

Employers must treat employees’ requests for alternative methods of screening because of an alleged medical condition as a reasonable accommodation request under the ADA or Rehabilitation Act. Employers should engage in an interactive process with those employees if the reason for the accommodation is not obvious. As part of the interactive process, employers may request medical documentation that supports the employee’s accommodation request.

Employers will not need to worry about the Americans with Disabilities Act (“ADA”) issues if they screen employees on return to work consistent with dictates of the CDC and public local health agencies.

Exclusion of employees from the workplace:

The EEOC guidance also answers employers’ questions about what to do regarding employees the employer knows are at an increased risk for severe illness if they contract COVID-19 at the workplace. The EEOC reminds employers that they are not required to take any action unless an employee requests a reasonable accommodation. However, employers may inquire whether particular employees would like to request reasonable accommodations prior to returning to work, or they may notify employees generally of that option.

An employer may only exclude an employee from the workplace due to a medical condition if the employer knows the medical condition presents a “direct threat” to the employee’s own health that cannot be addressed by a reasonable accommodation. Even if the employee poses a “direct threat” to his or her own health, the employer still cannot exclude the employee unless, after engaging in an interactive process with the employee and considering all options, the employer concludes a reasonable accommodation is unavailable. Employers are prohibited from postponing a start date or withdrawing a job offer because the individual being hired is over 65 years old or pregnant (both of which are conditions that place individuals at higher risk from COVID-19). If the employee would prefer, remote work or postponement of a start date is acceptable.

An employee at risk of serious illness due to COVID-19 is obligated to inform his/her employer, that he or she requires a reasonable accommodation. The employer may ask follow up questions or request medical documentation.

Confidentiality of COVID-related information:

Employers may maintain a log of temperature checks for an employee. However, an employee’s medical information is confidential. Therefore, an employer must keep an employee’s temperature log apart from the employee’s personnel file, and must restrict access to this confidential information.

An employer, however, is allowed to convey to a public health agency the name of an employee when the employer learns that the employee has COVID-19. Temp agencies may notify employers if they know an employee has tested positive for COVID-19.

COVID-motivated harassment:

Employers may notify employees that COVID-19 concerns must not be asserted against individuals because of a protected characteristic, including national origin, race or other prohibited bases.

Employers may require employees to wear PPE and conform to practices such as hand washing and social distancing. However, employers may need to accommodate employees with disabilities or limitations based upon religious beliefs or clothing.

The EEOC’s website provides certain policy toolkits for employers, particularly small businesses, to help them avoid harassment claims.

Before it promulgated this supplemental guidance, the EEOC hosted a March webinar in which the agency answered questions about the applicability of the ADA and Title VII to COVID-19-related employment actions. The EEOC updated its previously published guidance entitled Pandemic Preparedness in the Workplace and the Americans With Disabilities Act to provide information and examples regarding COVID-19. This guidance confirmed that COVID-19 constitutes a “direct threat” and a significant risk of substantial harm would be posed by having someone with COVID-19, or symptoms of it, present in the workplace. Employers should follow the EEOC guidance in conjunction with the guidelines and suggestions made by the CDC and state/local health authorities.

THE FEDERAL RESERVE MAIN STREET LENDING PROGRAM

The Federal Reserve Main Street Lending Program (“Program”), as updated, may have launched by the time you receive this newsletter. The Program supports small and medium-sized businesses and will continue to include three credit facility options, each of which is somewhat different. The homepage for the Program contains links to the relevant documentation, frequently asked questions, related resources and a link for receiving Program updates. An extensive list of documents for the Program is provided at the Main Street Lending Program Forms and Agreements page. 

THE DOL WILL REFRAIN FROM SEEKING LIQUIDATED DAMAGES IN PRE-LITIGATION SETTLEMENTS OF WAGE AND HOUR CLAIMS AND INVESTIGATIONS

In a Field Assistance Bulletin to staff on June 24, 2020, The DOL’s Wage and Hour Division advised it “will no longer pursue pre-litigation liquidated damages as its default policy from employers.”

This directive means that the DOL no longer will assess multiple damages unless, among other reasons, there is clear evidence of a business’ bad faith and willfulness. A supplemental bulletin from Deputy Labor Secretary Patrick Pizzella explained that the Obama administration had employed liquidated damages “in a departure from its long-standing prior policy” without publishing specific guidance.

Deputy Secretary Pizzella’s contended that “continuing to recover pre-litigation liquidated damages as the rule, rather than the exception in limited cases, appears to be an administrative enforcement practice that E.O. 12924 [President Trump’s recent Executive order titled “Regulatory Relief to Support Economic Recovery”] describes as potentially inhibiting economic recovery in these challenging times for American workers.”

Secretary Pizzella added, “the rigid enforcement policy does not appear to sufficiently allow” businesses to adhere to complex regulations in light of COVID-19’s current impacts.

PAYCHECK PROTECTION PROGRAM FLEXIBILITY ACT UPDATE

On June 5, President Trump signed into law Paycheck Protection Program Flexibility Act of 2020. This new statute permits a new EZ version of the forgiveness application that applies to self-employed or sole employee borrowers or those borrowers that maintained employee compensation within 25% of previous salaries and wages and did not reduce hours or suffered business losses due to COVID-19 but maintained employee compensation within 25% of previous salaries and wages.

Borrowers have the option of using the original 8-week covered period, if their loan was consummated prior to June 5, 2020 or an extended 24-week covered period.