EEOC Guidance: Employers Cannot Test Employees for COVID-19 Antibodies

The legal landscape continues to shift rapidly during the COVID-19 pandemic.  As we reported here and here, Equal Employment Opportunity Commission (“EEOC”) guidance allows employers to require employee temperature checks, as well as worker testing aimed at detecting COVID-19, even though such testing by an employer would ordinarily raise issues under the Americans with Disabilities Act.  Daily temperature screening can be one tool to help stop the spread of COVID-19, as can be testing for COVID-19 when the circumstances warrant a more aggressive approach.  However, the EEOC has issued further guidance clarifying that while employers may continue to test for COVID-19 itself, employers may not test for COVID-19 antibodies.  The guidance says that antibody tests are not “job related and consistent with business necessity,” and therefore cannot be used as a basis for allowing employees to return to work or as a proxy for COVID-19 immunity.

For specific guidance on COVID-19 testing and workplace safety measures, please contact us.

Cloth Face Coverings Are Now Required in Anchorage

Anchorage Mayor Ethan Berkowitz has issued Emergency Order EO-13, requiring that all individuals in Anchorage wear masks or cloth face coverings when “indoors in public settings or communal spaces outside the home.”  The Order, which took effect on June 29, remains in effect until midnight on July 31 unless revoked or extended.  Settings in which masks or cloth face coverings are required include (but are not limited to) grocery stores, pharmacies, retail stores, restaurants, bars, public transportation, personal care facilities, childcare facilities, communal areas of offices, and elevators and indoor communal spaces in other buildings.

Employers are required to provide masks or cloth face coverings to employees who have direct contact with customers, members of the public, or other employees and are required to ensure that the employees actually wear them.  Several exclusions to the mask requirement apply, including individuals who have a medical condition or disability that would make wearing a mask unsafe or intolerable, individuals who are speech or hearing impaired and use facial or mouth movements to communicate, and individuals performing an activity that cannot be safely conducted while wearing a mask.  An individual declining to wear a mask because of a medical condition or disability is not required to produce medical documentation to support that decision in order to be excluded from the Order’s requirement.  Notably, however, if an employer chooses to have its own mask-wearing requirement in the workplace, the employer may still require an employee to provide medical certification supporting his or her request to be excused from that work rule because of a disability.

The Mayor’s Order has the force and effect of law.  There is a safe harbor for businesses faced with non-compliant customers: the business will not be fined as long as it has a “clearly posted sign informing customers that they are required to wear face coverings.”  One resource for signage is the Alaska DHSS website.  The agency has released a variety of downloadable and printable resources for business owners, including door signage regarding masks, floor decals to encourage social distancing, hand hygiene instructions for restrooms and break rooms, and social media graphics, all of which feature Alaska-themed artwork.

Updates on Use of FFCRA Leave for Childcare this Summer

As we previously discussed here, the Families First Coronavirus Response Act (“FFCRA”) requires employers with fewer than 500 employees to provide up to 12 weeks of paid leave to eligible employees whose school or place of childcare is unavailable due to the COVID-19 pandemic.  New guidance from the Department of Labor (which can be found here) specifically addresses FFCRA use over the summer.

An employee requesting FFCRA leave must provide sufficient information (orally or in writing) to explain the reason for the leave and that the employee cannot work as a result.  For childcare leave, the employee must also provide the name of the child, the name of the school or place of care, and a statement that no other suitable person is available to care for the child.

If the leave is due to a summer camp closure, employers may ask for the name of the specific camp or program in which the child was enrolled.  However, even if the child was never enrolled, the employee may be eligible for leave.  If the child was eligible to attend or attended in past summers, or the employee planned to send the child to the closed camp or program, the employee is eligible for the leave. The DOL emphasizes that there is no “one-size-fits-all rule” and neither current enrollment nor prior attendance are necessary to establish FFCRA eligibility.  Employers should simply require the employee to provide the name of the camp and the dates of attendance, and certify that but-for-COVID, the child would have attended camp.

Oregon employers should also keep in mind that unpaid leave to care for a child may also be available to employees under the Oregon Family Leave Act.  (See our previous post, here.)

Updated Face Covering Guidance for Oregon Businesses

Oregon Governor Kate Brown issued an order this week making her earlier Mask, Face Shield, and Face Covering Guidance applicable statewide effective July 1, 2020.  Although the media has generally described the guidance as applying to all businesses, it is only required of the following covered businesses:

  • Grocery stores
  • Fitness-related organizations
  • Pharmacies
  • Public transit agencies and providers
  • Personal service providers
  • Restaurants, bars, breweries, brewpubs, wineries, tasting rooms, and distilleries
  • Retail stores, shopping centers, and malls
  • Ride sharing services
  • Certain indoor sports, swimming, spa, recreation, and entertainment or venue operators in Phase Two counties

The face covering guidance is recommended for other types of businesses.

Covered businesses must require their employees, contractors, and volunteers to wear masks, face shields or face coverings, unless an accommodation or exemption is required by law.  Face coverings are not required when eating or drinking or when the individual is not interacting with the public if six feet of distance can be maintained.  Employers must provide face coverings for their employees.  You can read about reasonably accommodating employees who cannot wear face coverings here.  Employees who refuse to wear a face covering but do not have a medical issue or disability may be disciplined (including terminated) for violation of a workplace rule.

Covered businesses must also require their customers and visitors to wear masks, face shields, or face coverings unless the customers are eating or drinking or engaging in an activity that makes face coverings not feasible (e.g., strenuous physical exercise, singing) if social distancing is maintained.  It is recommended but not required that businesses provide free disposable face coverings for customers or visitors who do not have one and post signs about the requirements in languages commonly spoken by customers and visitors.

All businesses should be prepared to provide an accommodation to members of the public who cannot wear face coverings as a result of a medical condition or disability.  If a customer states that they cannot wear a face covering due to a medical condition or disability, the business should offer alternative accommodations if available (e.g., providing a sanitized face shield if practical or providing curbside service).  The business should not challenge the customer on whether they actually have a medical condition or disability that makes wearing a face covering impossible or difficult.  Accept the customer at their word.

The updated guidance also requires that individuals visiting indoor spaces open to the public wear face coverings unless they are 12 years of age or under or have a medical condition or disability that prevents them from wearing one. Indoor spaces that are accessible to the public, regardless of whether they are publicly or privately owned, must comply with this rule. Such spaces include building lobbies, elevators, and meetings rooms outside of private homes where people gather for social, civil, cultural, or religious purposes. Those responsible for indoor spaces open to the public must require that their visitors comply with these rules, unless the activities being performed make face coverings not feasible and six feet of distance can be maintained. As in other public settings, accommodations must be made for those with disabilities.

We recommend that all businesses train their employees about how to handle interactions with customers and the public, including how to accommodate customers who say they cannot wear face coverings due to a medical condition or disability.  Accommodations to consider include asking the customer to shop online, offering a personal shopping service while the customer waits outside, offering use of a face shield, or asking the customer to maintain a greater social distance than six feet while shopping.  A customer who refuses to wear a face covering but who does not have a medical condition or disability should be told that they must leave.  If the customer refuses to leave, the business should follow its standard practices for dealing with trespassers, including contacting the police.  Do not risk a physical altercation.

Here is the sample sign about face coverings recommended by the Oregon Health Authority.

Utah Counties Require Face Coverings

On June 25, Governor Gary Herbert approved requests by leaders in Salt Lake and Summit Counties to require face coverings in indoor and outdoor settings where social distancing is difficult or impossible.  The Governor had previously mandated the use of face coverings in state buildings, including state offices, liquor stores, colleges, and universities.

Salt Lake County Public Health Department subsequently issued a public health order, effective June 26 at midnight, requiring face covering “that completely covers the nose and mouth in public areas where consistent social distancing of at least six feet is not possible, reasonable, or prudent.”  Salt Lake County also issued guidelines clarifying the requirement for masks or face coverings in the following situations:

  • At all indoor or outdoor public gatherings where social distancing is not possible
  • Inside or while waiting outside retail and other public locations
  • While waiting to be seated at bars or restaurants

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Governor Inslee Announces Statewide Mask Mandate in Washington

On June 23, Governor Jay Inslee announced that facial coverings will be mandatory statewide.  Starting Friday, June 26, anyone in a public space must wear face coverings.  The mandate includes indoor public spaces and outdoor public areas where physical distancing of six feet is not possible.  Individuals may remove face coverings while eating or drinking at a restaurant.

Individuals with certain medical conditions and children under the age of two are exempt from wearing facial coverings in public.  Children between the ages of two and four are encouraged but not required to wear a facial covering in public.

This mandate comes on the heels of the June 20 announcement requiring facial coverings in Yakima County.  In addition to the requirement that individuals in Yakima County wear face coverings in public, businesses in Yakima County must require customers to wear masks and may not serve anyone who enters the business without a face covering.

Employers should remember that almost all workers are still required to wear cloth face coverings under the Safe Start Proclamation as discussed in a previous post.

Oregon Employers Must Post Pregnancy Accommodation Notice and Distribute Notice to Existing Employees by June 29, 2020

Effective January 1, 2020, Oregon law requires employers with six or more employees to make reasonable accommodations for known limitations related to pregnancy, childbirth, or a related medical condition, such as lactation, unless the accommodation would cause an undue hardship. An employer’s accommodation obligations extend beyond those already required by the federal Americans with Disabilities Act and Pregnancy Disability Act, as an employee may be entitled to accommodations even if the employee’s limitations do not rise to the level of a disability or temporary disability.

The new law requires employers to post a notice in a conspicuous and accessible workplace location informing employees of the employment protections under the new Oregon law. In addition to posting the sign, a written copy of the notice must be provided to (1) existing employees (by no later than June 29, 2020); (2) new employees at the time of hire; and (3) employees who inform their employer of their pregnancy, within 10 days after the employer receives the information.

The Oregon Bureau of Labor and Industries just released a template notice (available here as Word .docx download). Employers can, but are not required to, adopt the template notice. We recommend that employers work with their counsel to modify the template policy to best suit their workplace.

BOLI Releases Oregon Workplace Fairness Act Model Policy

The October 1, 2020 deadline for Oregon employers to update their non-discrimination policies is approaching.  In 2019, the Oregon Legislature passed the Workplace Fairness Act (the “Act”), which made significant changes to state law governing discrimination and harassment claims (quick recap here).  Among other provisions, the Act requires employers to adopt a written anti-discrimination and anti-harassment policy by October 1, 2020 that:

  • Describes the process to report prohibited conduct, including suspected discrimination, harassment or sexual assault;
  • Identifies an individual, and an alternate, to whom reports can be made;
  • Notifies employees that they have five years from the date of the prohibited conduct to bring a claim;
  • States that an employer may not require or coerce an employee to enter into a non-disclosure or non-disparagement agreement (and defines those terms);
  • Explains that an employee may voluntarily request to enter into an agreement that contains non-disclosure, non-disparagement or no-rehire clauses, but has seven days to revoke the agreement; and
  • Advises employers and employees to document any incidents of alleged prohibited conduct.

This week, the Oregon Bureau of Labor and Industries released a template policy (available here) that addresses each of the above topics.  Employers can, but are not required to, adopt the template policy.  We recommend that employers work with their counsel before October 1 to update their existing policies or modify the template policy to best suit their workplace.

Under the Act, employers must (1) make the final policy available to employees; (2) provide a copy to all new hires; and (3) provide a copy to an employee at the time the employee reports information regarding suspected prohibited conduct.

As for the Act’s other key provisions:

  • The expanded statute of limitations (from one year to five years) on workplace discrimination, harassment or sexual assault already took effect in September 2019.
  • Effective October 1, 2020:
    • Employers may no longer include non-disclosure, non-disparagement and no-rehire provisions in employment or settlement agreements for discrimination, harassment or sexual assault claims, unless an employee requests those terms; and
    • Employers may void severance agreements for managers who violate discrimination or harassment policies.

If you have questions about the Act and its impact on your business, contact your employment attorney.

Face Coverings Are Now Required for Employees of Select Oregon Businesses

Pursuant to Oregon Health Authority (OHA) guidance, employers in certain businesses must require employees, contractors, and volunteers to wear a mask, face covering, or face shield, unless an accommodation for people with disabilities or other exemption applies. On June 11, 2020, the OHA issued updated guidance explaining that face coverings are not required when eating/drinking or when in a non-public-facing location where six or more feet of distance can be maintained.

Businesses subject to this requirement are:

  • Grocery stores
  • Fitness-related organizations (gyms, fitness centers, dance studios, martial arts centers, etc.)
  • Personal services providers (barber shops, hair salons, esthetician practices, day spas, nail salons, tanning salons, tattoo parlors, etc.)
  • Pharmacies
  • Public transit agencies and providers
  • Restaurants, bars, breweries, brewpubs, wineries, tasting rooms, and distilleries
  • Retail stores
  • Ride sharing services

Employers must provide masks, face coverings, or face shields for employee use.  Such businesses must also develop and comply with policies and procedures that provide for accommodations for employees with disabilities and require employees to review those policies and procedures.  Here is our previous blog about accommodating disabled employees who may be unable to wear a face mask or covering.

In addition, businesses that require customers or visitors to wear face masks or coverings must develop a policy and post clear signs about the requirements.  The OHA guidance outlines requirements for such a policy.

Additional information for Oregon businesses about reopening is also available here.

Employees May Now Bring Direct Claims Against Employers for Alleged Violations of the WA Paid Family and Medical Leave Act

Amendments to the Washington Paid Family and Medical Leave Act (“WPFMLA”) that went into effect June 11, 2020 include a new private right of action for employees. Under the WPFMLA, employers are prohibited from interfering with, discriminating against, or retaliating against employees exercising their rights under the Act. Previously, any claims of interference, discrimination, or retaliation could only be brought through the Washington Employment Security Department (“ESD”), which would conduct an administrative investigation and adjudication. While an employee may still choose to raise his or her claims with ESD, the newly-amended WPFMLA now allows employees to instead choose to bring direct claims against employers by filing suit in court. Class actions are also expressly allowed by the Act.

What does this mean for Washington employers? With ESD currently overwhelmed by unemployment claims, it is reasonable to expect that most WPFMLA claims will now be raised directly by employees in the courts. And with more options for pursuing WPFMLA claims – and many employees taking COVID-related leave – we could soon see an increase in litigation in this area. It is now more important than ever to ensure that you are complying with the WPFMLA. See here for more details about employers’ obligations under the Act.

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