The coronavirus (COVID-19) pandemic is causing disruptions throughout society, and government agencies aren’t immune from the need to make changes to normal practices.
Employees testing positive for the virus have brought about agency branch office closures, essential government workers have been directed to work from home, and others not able to work from home find themselves waiting out the crisis along with the private-sector workers who have been put out of jobs.
The rapid spread of the virus has brought about a number of modifications or clarifications to normal legal compliance rules.
The crisis prompted the Equal Employment Opportunity Commission (EEOC) to clarify how the pandemic is forcing exceptions to more typical enforcement guidance. For example, guidance updated on March 19 clarifies that employers may check the temperature of employees during the pandemic.
The guidance explains that taking an employee’s temperature usually constitutes a medical examination, which is prohibited by the Americans with Disabilities Act (ADA) unless it is job-related and consistent with business necessity. But during the COVID-19 crisis, temperature checks and requests for health-related information fall under special rules related to pandemic conditions.
In addition to taking temperatures, employers can request more information than usual from employees calling in sick. The EEOC guidance says that during a pandemic, ADA-covered employers may ask employees if they are experiencing COVID-19 symptoms such as fever, chills, cough, shortness of breath, or sore throat. But employers must maintain all information about employee illness as a confidential medical record.
In addition, employers that are hiring may screen applicants for symptoms of COVID-19 after making a conditional job offer as long as they do so for all entering employees in the same type of job.
Employers also may withdraw a job offer when the applicant is needed immediately if the individual has COVID-19 or symptoms of it. The EEOC guidance explains that according to guidance from the Centers for Disease Control and Prevention (CDC), such an individual cannot safely enter the workplace. Therefore, the offer can be withdrawn.
The U.S. Department of Labor (DOL) also has released a collection of guidance documents related to COVID-19 covering topics including wage and hour issues, workplace safety, unemployment insurance, support for dislocated workers, and more.
The U.S. Department of Homeland Security (DHS) is another agency taking action in response to the disruptions employers are experiencing. The agency is deferring requirements for employers to review Form I-9 documents in person with new employees. The change applies to employers that are operating completely remotely.
“Employers with employees taking physical proximity precautions due to COVID-19 will not be required to review the employee’s identity and employment authorization documents in the employee’s physical presence,” DHS said. To be in compliance, however, employers must inspect documents remotely via video link, fax, e-mail, etc.
The government also has announced that E-Verify is extending the time allowed to resolve Social Security Administration Tentative Nonconfirmations (TNCs) because of the closure of Social Security offices to the public. E-Verify also is extending the time to resolve DHS TNCs in limited circumstances when an employee can’t resolve a TNC because of public or private office closures.
The National Labor Relations Board (NLRB) also has responded to the pandemic. It suspended all union representation elections, including mail ballot elections, at least through April 3.
“The Board deems this action necessary to ensure the health and safety of our employees, as well as those members of the public who are involved in the election process,” the Board’s announcement said. “Moreover, given the closure of several Regional Offices and limited operations and significant telework at others, the Board does not believe that it is possible to effectively conduct elections at this time.”
Congress Passes Legislation
With the virus spreading at an alarming rate, Congress also has taken unusual steps by passing legislation aimed at helping workers whose livelihoods have been hurt as well as companies large and small that are losing business.
One of the early pieces of legislation—the Families First Coronavirus Response Act (FFCRA)—provides for certain employers to offer paid sick leave or expanded family and medical leave for COVID-19-related reasons.
But not long after the FFCRA was signed into law, the DOL announced a “temporary period of non-enforcement” of its requirements from March 18 through April 17 for employers that made “reasonable” and “good-faith” efforts to comply.
Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR web and print publications.