August 14, 2020 | Covid-19 | Posted by Ascentis
Reopening America Part II: Who Works Where, and Managing Liability
[Ed. Note: In this second in a series, we offer observations and best practice guidance on the role that Human Capital Management can play in guiding your business to a safer reopening.]
In our last column (posted July 24), we reviewed the regulatory basis upon which employers must ensure they have taken the necessary steps to keep their workforces safe from the coronavirus.
We also reviewed Virginia’s first-in-the-nation status imposing temporary regulations on employers state-wide for reopening communal workplaces, which went into effect July 27. We also left a brain-teaser dangling:
…which state recently published a gubernatorial executive order around the coronavirus, that has the potential to up-end the state workers’ compensation system?
If you “played the percentages” based on history, and assumed the answer is California, you are correct. On May 6, Governor Gavin Newsom signed an Executive Order (N-62-20), granting all employees working outside their homes, and who contract COVID-19, a rebuttable presumption that the disease was acquired at work, and therefore qualifies for workers’ compensation benefits.
Other states have had mixed experience with the issue of worker’s compensation coverage for acquired COVID-19 infections – some states have issued Executive Orders, while other states have proposed legislation which either was passed, failed or is still pending. Frequently, a state’s rules will differ depending upon the occupational classification of the employee, e.g., a presumption of worker’s compensation coverage for infection of a health care worker or first responder only. For an excellent and very complete analysis of this issue, in a state-by-state table format, see this National Conference of State Legislatures update.
After Redesigning Workspaces, What Comes Next?
As HR professionals, we know that “Priority One” (and Phase I) of reopening after our enforced temporary facility closures is to redesign workspaces to be safer, and while this is not a human capital management (human resource information technology) focused project, and therefore beyond the scope of this blog, it is incredibly important to improving worker safety in the age of COVID.
It can, and for most employers will, include tasks such as rearranging workspaces – particularly those promoting the recently popular “open office design” concepts. These tasks can include increasing personal space, modifying cubicle layouts, establishing one-way foot traffic, and even possible upgrades to HVAC venting to improve air filtration and circulation. There are literally hundreds of great resources with thousands of redesign ideas on the internet; here’s an article from Fast Company we recently found that includes 10 ideas with illustrations. HR professionals are quickly finding it necessary to become experts in HEPA filtration and “officles.”
Phase II, which should have just as high a priority as Phase I but likely begins only when Phase I is close to complete, is a set of decisions that are as tricky to make as they are easy to articulate: “Who works where (home vs. communal office)?” It would be ideal if each of these employee-specific decisions could be made objectively, based solely on the needs of the organization and the demands of the job. A staff accountant who works in isolation on a list of rotating tasks by month and quarter might easily be able to work from home with little or no negative impact on her performance. A business development representative’s job performance can be significantly bolstered by timed calling campaigns, a fair amount of supervision and interpersonal team dynamics, and a “bullpen”-like atmosphere, so workers in that role come in to the office.
If only it were that simple. For a few key reasons, it is not:
- As discussed in our previous blog, OSHA’s general duty clause imposes responsibility on employers to keep the workplace safe. It has yet to be fully tested vis-à-vis COVID.
- The Americans with Disabilities Act (and the Rehabilitation Act of 1973, for federal contractors), as well as some state laws, have some advice for employers on whether and where “reasonable accommodations” must be made. Overall, the rules for disability evaluation, the “interactive process” required to make accommodation decisions, and the “undue hardship” standards for declining to make such accommodations, apply as they did before the pandemic hit.
- Every employer must always have an eye to liability connected with an employee who can prove they acquired COVID at work. While the standard of proof here is high, it is also clear that no court or executive agency has yet delivered any path to employers for indemnity in these cases. So employers are in limbo. And the prospects for resolution on this issue at the federal level are particularly dim; when Congress recessed in early August without coming to any agreement on additional COVID legislation, insiders to the negotiations reported that the two political parties were FAR apart on the issue of employer indemnification for work-based COVID acquisition liability cases.
There is (Limited) Guidance
Where does this leave employers? With some limited exceptions (a retail store salesperson, for example, with no background that would make him eligible to take a non-customer-contact job), employers must continue to engage in the ADA’s interactive process to determine whether a reasonable accommodation can be made to allow the employee to work from home.
On June 15, the Kaiser Family Foundation (kff.org) published a major, if not surprising finding: “Almost One in Four Adult Workers is Vulnerable to Severe Illness from COVID-19.” This article broke the numbers down simply and directly, based on the latest research available (2018):
- 19.5% of adults age 65 or older are still working full or part-time. This amounts to 10 million workers.
- An additional 27.7 million adult workers age 18-64 are at higher risk due to CDC-recognized comorbidities (pre-existing conditions).
- The total of 37.7 million adult workers (24% of the adult working population) are at risk of severe disease…and a large portion of this population can be expected to request work-from-home accommodation if not already offered that status.
As dramatic as these statistics were, they were based on 2018 data collection, and just 10 days later the CDC issued revised guidelines to better identify serious COVID comorbidities (pre-existing conditions which can make the disease much worse or even life-threatening). Here is a table of the new CDC comorbidity determinations as of June 25, with the changes highlighted in red. [Note that the “Limited Evidence” portion of the list has been excluded, because the June 25 revisions made no additions to that list related to adults.]
A few important points to consider as employers use this list to help make informed decisions about who should work from home and who should not:
- In the “strongest and most consistent evidence” category, the revision of BMI (body-mass index, a simple calculation of weight to height ratio that allows us to “equalize” people of vastly differing heights in determining their ideal weight) from 40 or greater, down to 30 or greater, adds an estimated 30% of the US adult population to those with potentially severe comorbidities.
- In the “mixed evidence” category, pregnancy presents its own unique challenges to HR professionals intent on making the right decisions, in part because of multiple laws which may be in tension with each other. Title VII, the Pregnancy Discrimination Act, and the ADA all have something to say regarding how employers treat pregnant employees when making return-to-work decisions. Here is an excellent article on navigating these difficult decisions, courtesy of the Mintz Law Group.
- Acquiring information from employees who do not initiate requests for reasonable accommodation on their own forms a particularly tricky aspect of the law. The EEOC advises us that, when it comes to asking about potential comorbidities: “…[all] inquir[ies] should be structured so that the employee gives one answer of ‘yes’ or ‘no’ to the whole question without specifying the factor(s) that apply to him. The answer need not be given anonymously.”
Additional guidance on these subjects is offered by the EEOC in a frequently updated “What You Should Know” FAQ web page that all employers should consult. Examples of these questions of general interest include:
- New hires can be required to be screened for COVID symptoms, but ONLY after a contingent offer of employment has been made,
- An offer of employment can be withdrawn if the need to fill is immediate and the new hire cannot safely enter the workplace due to an active case of COVID,
- An employee is NOT entitled to an accommodation under the ADA if they are not of advanced age and have no comorbidities, but have family members who are, and they are simply concerned about “transporting” the virus to family member(s),
- While requests for accommodation for a “preexisting mental health condition” must be treated just as any other request for accommodation, a generalized fear of acquiring COVID, in and of itself (and absent other comorbidities), is not sufficient to justify work-from-home status.
In our final blog post in this series, we’ll focus on how daily employee screenings will become the standard for most employers, and the tools and resources available to employers to accomplish them.