Archives for June 2020

Johnsenia Brooks

Every day as more research is conducted, all of us are trying mitigate any chance we have of contracting the COVID-19 virus — by maintaining a 6-foot distance from others, regularly handwashing, and wearing a mask or face covering, among other measures recommended by the Centers for Disease Control (CDC). 

Based on currently available information and clinical expertise, however, older adults and people of any age who have serious underlying medical conditions might be at higher risk for severe illness from COVID-19.

Individuals considered high-risk for severe illness from COVID-19 include:

• People 65 years and older
• People who live in a nursing home or long-term care facility

People of all ages with underlying medical conditions, particularly if not well controlled, including:

• Chronic lung disease or moderate to severe asthma
• Serious heart conditions
• A compromised immune system caused by, but not limited to cancer treatment, smoking, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS, and prolonged use of corticosteroids and other immune weakening medications
• Severe obesity
• Diabetes
• Chronic kidney disease; and
• Liver disease

Requesting Reasonable Accommodation 

The U.S. Equal Employment Opportunity Commission (EEOC) has updated its guidelines to help employees request a reasonable accommodation due to being at a higher risk of severe illness from COVID-19.  

An employee – or a third party, such as an employee’s doctor – must let the employer know that he or she needs an accommodation for a reason related to a medical condition (here, the underlying condition the CDC considers high-risk for severe illness from COVID-19).  Individuals may request accommodation in conversation or in writing. The employee (or third party) does not need to use the term “reasonable accommodation” or reference the Americans with Disabilities Act in order to request an accommodation. 

After receiving a request, the employer may ask questions or seek medical documentation to help evaluate if the individual has a disability and if there is a reasonable accommodation, barring undue hardship, that can be provided. 

Accommodations that could be offered for individuals at higher risk for severe illness from COVID-19 include:

1. Additional or enhanced protective gowns, masks, gloves, or other gear beyond what the employer may generally provide to employees returning to its workplace;
2. Erecting a barrier that provides separation between an employee with a disability and coworkers/the public;
3. Increasing the space between an employee with a disability and others;  
4. Eliminating or substituting particular job duties that are not considered “essential” functions of a particular position;
5. Temporary modification of work schedules if it would decrease contact with coworkers and/or the public when on duty or commuting;
6. Moving the location where the employee performs his or her work if it provides more social distancing

While these are some options to consider, an effective accommodation depends, among other things, on an employee’s job duties and the design of the workspace. Employers and employees are encouraged to be creative and flexible during these uncertain times to ensure that employees can still with while still mitigating risks. If you believe you may qualify for a reasonable accommodation based on being at higher risk for COVID-19, or for any other reason, contact one of our attorneys at Seldon Bofinger to schedule an initial consultation. 

Last edited May 7, 2020

The federal government’s social distancing guidelines expired at the end of April and many states have re-opened their economies, albeit at limited capacities. As more and more employers are preparing to re-open work spaces, the U.S. Equal Employment Opportunity Commission (EEOC) offered more guidance concerning COVID-19. 

As of April 23, 2020 employers now have the ability to medically test their employees for COVID-19 before allowing them to enter the workplace–not just temperature checks as was originally advised. The EEOC reasoned that mandatory medical tests of employees are permitted under the Americans with Disabilities Act when they are job-related and consistent with business necessity. This new addition is reasonable considering that some people with COVID-19 do not have a fever or experience symptoms. 

The Best Testing Practices

COVID-19 testing is meant to reduce the “direct threat” the coronavirus poses to the health of others. If an employer chooses to administer COVID-19 tests, they should do so in a consistent, non-discriminatory manner. Employees cannot be singled out for special testing on the basis of race, sex, religion, or other protected characteristics.

It is the employer’s responsibility to ensure that tests used are administered by trained personnel or a third party professional, reliable and accurate, that the appropriate consent and disclosures are obtained to share data between the medical provider and the business, and that the records are treated as confidential medical records, all consistent with Americans with Disabilities Act standards. Employers are encouraged to use guidance from the U.S. Food and Drug Administration about what may or may not be considered safe and accurate testing, as well as guidance from CDC or other public health authorities, and check for updates, periodically. As of the publication of this post, the EEOC has remained silent on the issue of who bears the cost of COVID-19 testing and did not suggest the use of other tests, such as antibodies tests.

COVID-19 Testing Practices in Collaboration with other practices 

Employers may wish to consider the incidence of false-positives or false-negatives. Accurate testing can only reveal if the virus is currently present and a negative test does not mean the employee will not acquire the virus later. Based on guidance from medical and public health authorities, employers should still require – to the greatest extent possible – that employees observe CDC workplace practices, such as social distancing, regular handwashing, and other measures, to prevent transmission of COVID-19.       Last edited May 6, 2020

Johnsenia Brooks

Anxiety produced by COVID-19 has been growing exponentially, much like the number of people infected with the virus each day. The biggest hope we could have for our family members and loved ones is that the chances of infection remain even more distant than the 6 feet we keep from each other. However, virus spread projections have instilled in us a new fear of getting infected and we cannot fall victims to being ill-prepared. Luckily, for many employees, new provisions have extended laws that were meant to protect the family unit without requiring employees to choose between their jobs and taking care of a loved one.

The federal Family & Medical Leave Act (FMLA) allows a qualified employee to take up to 12 weeks of unpaid leave within a 12-month period if they or an immediate family member requires care for a “serious health condition.” The fundamental principle of this law protects employees from having to choose between the job they need and the family members in need of their care.

The law also guarantees that a qualified employee continues receiving health insurance benefits and requires their employer to offer them the same or equivalent position when they return. Qualified employees are defined as individuals who have worked for at least one year, over 1,250 hours in the prior year, and whose employer has at least 50 employees in a 75-mile radius.

The Families First Coronavirus Response Act (FFCRA) allows employees who work for employers of less than 500 employees to take up to 80 hours of paid emergency sick leave. An employee may take emergency sick leave under the FFCRA if they are:

1. Caring for an individual who is subject to a Federal, State, or local quarantine or isolation order related to COVID-19 ;
2. Advised by a health care provider to self-quarantine due to concerns related to COVID-19;
3. Experiencing symptoms of COVID-19 and seeking a medical diagnosis;
4. Caring for a child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons; or
5. Experiencing any other conditions, as specified by the Secretary of Health and Human Services.

The rate of pay varies depending on the circumstances, and more information is available through the Department of Labor. The FFCRA’s paid leave provisions are effective on April 1, 2020, and apply to leave taken between April 1, 2020, and December 31, 2020.Local and state laws may provide even greater protections for employees. Click for information regarding protections for employees in Washington D.C., Maryland, and Virginia.