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Tips for Reopening after COVID-19 Shutdown

Tuesday, May 19th, 2020

Tips for Reopening after COVID-19 Shutdown
By: Allison L. Davis

In response to Governor Abbott’s Executive Order permitting additional businesses to reopen, many employers are considering not only when to reopen but also how to return employees to the workplace safely. Navigating employee health, disability, and reasonable accommodation issues will be key in successfully recalling workers.

On May 7, 2020, the U.S. Equal Employment Opportunity Commission updated its publication “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” The publication (now 13 pages in length) includes 35 sets of questions and answers, separated by topic: disability-related inquiries and medical exams; confidentiality of medical information; hiring and onboarding; reasonable accommodation; pandemic-related harassment; furloughs and layoffs; and return to work.

The full publication includes additional detail and explanation on all of these points. But, these tips are a good starting place for employers considering reopening:
            • During a pandemic, employers may ask about symptoms of the pandemic virus (but not symptoms unrelated to COVID-19). Employers should continue to monitor the CDC’s list of COVID-19 symptoms.
            • Employers make take (and log) employee temperatures. But, this information is confidential health information and should be maintained as such.
            • Employers may not postpone the start dates of or withdraw job offers from individuals identified as high-risk. But, high-risk employees may request a postponement.
            • Employers may temporarily provide a disability accommodation. This includes providing an employee’s requested accommodation on a trial or interim basis while awaiting medical documentation or providing an accommodation through a particular date on a trial basis.
            • Employers may ask employees whether they will need a reasonable accommodation upon returning to work (even employees who are not yet returning to work).
            • Employers may consider current circumstances (cash flow, business closures, etc.) in determining whether a requested accommodation may cause an undue hardship. Some requests may cause undue hardship in light of pandemic circumstances.
            • Employers must consider accommodation requests from even those workers deemed essential or critical.
            • Employers may not automatically ban high-risk workers from the workplace. The ADA direct threat analysis still applies.

Employers reopening (or expanding services) should stay up-to-date on the latest government declarations, Centers for Disease Control recommendations, and industry-specific protocols to ensure compliance with applicable laws and regulations. In addition, employers grappling with employee disability, and reasonable accommodation issues should work with their counsel to navigate the difficult intersection of disability law and pandemic reality.

This is not a legal opinion. You should contact your attorney if the information is of significance to you.

Allison L. Davis, J.D. is a member of Brown & Fortunato’s Labor and Employment law team, where she is a shareholder. She represents clients in a wide range of employment litigation, pre-litigation, and counseling matters, including employment discrimination, non-competition disputes, wage and hour issues, and business disputes. The Employment Law team at Brown & Fortunato can be reached at 806-345-6300. Or contact Allison directly at adavis@bf-law.com.