Law Offices of Stanley E. Niew, P.C.

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LABOR & CONSTRUCTION LAW UPDATES

These Newsletters are not intended as legal advice since each situation depends specifically on the facts presented. Persons reading these Newsletters should seek competent legal advice with regard to the subjects contained herein before making any employment or other decisions.
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MAY 2020

Inside This Issue

1. Employers Must Plan for Re-Hiring Under COVID-19

2. IDHR Issues Required Training Materials

Employers Must Plan for Re-Hiring Under COVID-19

Employers who laid-off or furloughed individuals, need to plan now for re-hiring employees. For example, many employers allowed employees to work remotely from home knowing that it is less efficient, has a loss of productivity and otherwise would not have granted work from home ability before COVID-19.

Employers in this situation should keep track of inefficiencies and then prepare a policy statement that the remote working was a one-time event which is unlikely to be repeated in the future. Without such a policy statement, employers will not be able to defend ADA claims as an accommodation to work from home.

Re-Designing the Work Area

Re-designing work areas may be temporary in some cases while permanent in others. For example, consider erecting barriers separating employees from co-workers and the public wherever possible. Are employees going to wear protective gowns, masks or other protective gear when returning to the work station? Or the entire time at work?

Employers will need to identify essential functions of a job and possibly eliminate some marginal functions which may be attended to by another employee or department. Employer may request suggestions from employees and discuss possible ideas including identifying possible accommodations.

Disability Related Inquires

During a pandemic, ADA covered employers may ask employees if they are experiencing COVID-19 symptoms such as: fever, chills, cough, and shortness of breath or sore throat. Some infected employees have been known to not have any of these symptoms. Employers may expand the associated symptoms as identified by the CDC such as loss of smell, loss of taste, nausea, diarrhea and vomiting.

Employers may wish to take body temperature of employees which is a medical exam and must be given to all employees in a particular class. Here, too, not all infected employees have a fever.

How New Medical Files should be stored by Employers under COVID-19

Medical type records may not be stored in personnel files but must be kept and marked “confidential information” and stored in existing medical files. Confidential information includes employees’ statements that he/she has the disease, suspects he/she has the disease or volunteers his/her symptoms.

Rehiring

Any medical exam is permitted only after the employer has made a conditional offer of employment. According to the CDC guidance, an individual who has COVID-19 or its symptoms should not be permitted in the workplace. Thus, if a person cannot safely enter the workplace the employer must withdraw the job offer.

The CDC has identified those older than 65 years old or pregnant women as being of greater risk. These facts do not permit postponing a start date or withdrawing a job offer. Employers may, however, allow telenetwork with these individuals if they would like to postpone the start date.

When recalling employees back to work make certain that you will not invite a claim under Title VII of the Civil Rights Act which prohibits discrimination based on race, color, national origin, religion and sex; also, consider age. It is recommended to prepare a recall list well in advance so there will not be an appearance of discrimination after careful scrutiny.

Can Employers Require Employees to Wear Personal Protective Equipment?

The answer is generally “yes,” a business can require employees to wear face masks, gowns and other safety equipment. However, there are certain medical conditions that make it impossible for an employee to wear a face mask or other personal protective equipment. If an employee reports such medical condition, that obligates the employer to go through an interactive process with the employee to determine if there is a reasonable accommodation. In this circumstance, employers can send the employee home without pay pending a resolution. It is unlikely the employee would be eligible for paid sick leave or emergency paid FMLA leave, but this decision must be made after careful review.

Employers can require the same personal protective equipment to third parties entering the employer’s premises.

Reasonable rules for employees and third parties can include regular handwashing, coughing and sneezing etiquette and proper disposal.

Employers Must Keep Abreast on These Rules

This article is based on the Equal Employment Opportunity Commission (EEOC) Guidance dated May 5, 2020. Guidance from various agencies changes frequently. Checking agency websites frequently is a must because some of the concepts herein may change.

What if an Employee Refuses to Wear Personal Protective Equipment?

As stated above, businesses can require the use of face masks and other safety equipment. OSHA’s general duty clause requires an employer to provide a workplace free from hazards. Hence, such employee can be sent home without pay and otherwise be terminated.

IDHR Issues Required Training Materials

On April 30, 2020, the Illinois Department of Human Rights (IDHR) issued a required training manual, Sexual Harassment Prevention Training, which Illinois employers must use as a training guide for all new employees and for existing employees who must be trained at least once a year beginning May 1, 2020. The Sexual Harassment Prevention Training should be incorporated or integrated into any preexisting or future sexual harassment policy. The training manual is available athttps://www2.illinois.gov/dhr/Training/Pages/default.aspx

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