Blog

As businesses and organizations settle into a new normal, we should consider some new ways of thinking about people management and human resources practices. Some considerations feel like a radical shift, others less so. One area that seems fairly radical is the way in which businesses have been encouraged to follow the Centers for Disease Control (CDC) guidelines on medical screens and temperature checks. The practice of asking employees questions related to their private health conditions and taking employees temperatures would have been unheard of in the past, yet it is now part of the new normal, at least for the foreseeable future. Other considerations under the new normal are simply an expansion of familiar categories, such as applying COVID-19 to Americans with Disabilities Act ADA regulations, leaves, or Occupational Safety and Health Administration (OSHA) recordkeeping. Here are some key considerations to keep in mind:

• During all phases of the recovery period, employers should continue to takes steps to do what they can to promote a safe working environment. This could involve appropriate infrastructure changes as well as policy and practice changes such as scrutinizing the need for all business travel and group activities.
• The CDC is recommending ongoing daily health checks, encouraging employees to stay home if they are sick, action plans for when an employee tests positive for COVID-19, increased sanitation practices, and appropriate social distancing, among a few other precautions.  If an employee comes down with COVID-19, employers must make a good faith effort determine if the virus was contracted at work. If it is determined that the employee was infected while on the job, the illness is recordable.
• The provisions of the Families First Coronavirus Response Act remain in effect until December 31, 2020. As infection rates drop and people return to a somewhat normal routine, employers should not lose sight of the fact that the Paid Sick Leave and expanded Family and Medical Leave Act (FMLA) still apply. It’s still possible that employees could become symptomatic,  test positive for COVID-19, or need to care for a child whose regular child care provider is closed, or any number of other provisions covered under the act.  
• Some aspect of working from home will remain with us. People in certain situations have worked from home for years, but it was the exception not the rule.  Now that many more have done it successfully, it begs the question, to what extent should it continue. There are some advantages, such as an overall reduction in needed office space and schedule flexibility. Some have been very productive as they have worked from home. Those that have found that they are productive and that like working from home may gravitate to employers that allow it.
• There is a new category to consider under the ADA. Employees who are considered high risk for a serious COVID-19 infection are now covered under ADA provisions. This would include but not be limited to older employees and employees with underlying health conditions. There will be situations where employers should consider these conditions as a disability during the time that the virus is still a threat. It will be necessary to engage in an interactive process with the employee and determine reasonable accommodation, which could include such things as schedule flexibility, working conditions, or allowing someone to continue to work from home.  
• An employee who is simply concerned to return to work would not normally be protected under the ADA. However, if the employee claims that an underlying health condition is creating the fear, employers should not discount the employees concerns outright. Another consideration involves groups of employees banding together and discussing fears about returning to work or related work conditions. This could be considered concerted activity and protected under the NLRA.
• Screening employee’s health conditions and taking their temperature is a medical exam. Though the Equal Employment Opportunity Commission (EEOC) and ADA have offered conditional approval for these activities, employers should remember that any documentation related to these activities is considered a medical record, and all associated conversations are private and subject to need to know criteria.

Much has changed. It’s best to take each situation and consider them on a case by case basis, try and stay informed, and continue to adjust. The new normal is here to stay, at least for a while.

About the Author
Shawn Miller is a principal at Morrison working primarily in our People Solutions practice. To get in touch with Shawn, please find contact information for Morrison here.