Please note that the information contained in this post is for informational purposes and is not to be considered legal advice. This blog post does not create or imply an attorney-client relationship. If you would like to discuss your particular circumstances with us, please set up a consultation by contacting the Satter Ruhlen Law Firm at 315-471-0405 or through our website (https://www.satterlaw.com/contact-us/). We look forward to walking you through your workplace rights.
It’s scary, or a relief, or a mixture of the two. The workplace now has cleaning requirements, PPE requirements, screening requirements, and social distancing requirements. You may have to take a test before you go in. You may be on staggered shifts with your co-workers, working at the office on some days and at home on other days. There are rules about who can be in different parts of the workplace and under what circumstances. There may be one-way hallways and closed breakrooms. The rules are changing every day, and it’s hard to know what you’re supposed to do and when. Here are some frequently asked questions facing employees these days:
- Can my employer require me to take a COVID-19 test before allowing me to return to work?
- It depends on the type of test.
- Antibody tests: On June 18, 2020 the EEOC updated its guidance in response to new CDC guidance stating that antibody testing should not be used to make decisions about whether an employee should return to work. If an employer is insisting that you take an antibody test in order to determine whether you should be allowed to return to work, call an attorney.
- Viral tests: However, a viral test is still an acceptable return to work requirement, as it is job-related and consistent with business necessity.
- Temperature checks: An employer can require employees to have their temperature taken prior to entering a workplace. However, if your employer insists on a particularly invasive temperature-taking method, call an attorney immediately.
- Written tests: Many New York employers are required to have their employees certify that they are symptom free, COVID-free, and have not been in contact with a COVID case in the past 14 days. This may be a paper you sign when you arrive at the workplace, or the employer may require you to fill out an online form before you even start your commute. As long as these certifications only ask about your COVID-19 symptoms, whether you are COVID-19 positive, and whether you’ve been exposed, those certifications are allowed. If the employer is asking you other medical questions, call an attorney.
- Watch this space. The rules are changing almost weekly. What was correct last week may not be correct this week. When in doubt, call an attorney.
- What’s the difference between an antibody test and a viral test?
- Antibody tests involve blood work. They show whether someone has previously had the virus. The EEOC considers an antibody test a “medical examination” under the ADA. In light of the CDC’s guidance that state that antibody testing can produce false positives, the EEOC has deemed antibody tests as impermissible medical examinations or inquiries for current employees.
- Viral tests check the mucus to detect if a person is currently infected and contagious. Viral tests can be achieved with swabs and are relatively non-invasive.
- What about a new employer?
- If you have a conditional offer of employment, the employer is allowed to send you for a medical evaluation to make sure you are fit to perform the essential functions of your job, as long as the employer requires all new employees to undergo testing. Any medical exams are permitted between a conditional offer of employment and the employee’s start date.
- An employer may delay the start date or withdraw the job offer if there is medical evidence that you are currently positive for COVID-19.
- It depends on the type of test.
- Can my employer make me wear a face mask?
- 99% of the time, yes.
- If you have a disability that precludes you from wearing a face mask, you will need to request a reasonable accommodation, which involves your doctor providing medical documentation of your condition.
- Be aware that COVID-19 is considered a “direct threat,” so if you have medical documentation showing that you cannot wear a face mask, and your job cannot be done remotely, the likely outcome is termination – not because of your disability, but because the employer can’t risk having you in the workplace without PPE.
- What if a person in my home is at high risk of serious health problems due to COVID-19?
- The employer is not required to accommodate you due to the health conditions of a person in your household.
- If you cannot telework due to needing to care for a high-risk family member, you may be eligible for FMLA, EFMLEA, or New York Paid Family Leave. Note that these protections require medical documentation showing that the person needs you to provide care – so if the concern is simply that you don’t want to expose a person who is capable of caring for themselves, you might not have much luck getting time off under these statutes.
- What if I am recovering from COVID-19?
- COVID-19 is considered a “serious health condition” for purposes of workplace law. As such, you may have accommodation and leave rights under the ADA, FMLA, EFMLEA, New York State Human Rights Law, and/or New York State Paid Leave [not to be confused with NYS Paid Family Leave, which gives you time off to care for other people].
- If you are recovering from COVID-19 and believe you are ready to return to work, or if you need some more time before you’re ready to return to work, your employer may need to get medical documentation from your health care provider. The employer is allowed to get information that will enable it to determine whether you can perform the essential functions of your job, whether more leave is warranted, and what, if any, accommodations it might be able to offer you.
- If you are concerned about returning to the workplace due to an underlying condition that puts you especially at risk, then it’s appropriate to ask for a reasonable accommodation. If your work can be done remotely, you may be able to get an accommodation that allows you to do telework.
- If your job cannot be done remotely, it’s likely the only accommodation an employer can offer is more leave. Do not ask for indefinite leave – an employer faced with a request for indefinite leave has an easy out for terminating your employment. Make sure your leave request has a definite end date. It is more difficult for an employer to deny a request for additional leave as an accommodation when there is a definite end date to the leave.
Reopening is a hopeful development for people who want to “get back to normal.” But, as continually repeated by the media, social media, experts, and politicians, there is no “normal” any more. You may find yourself returning to a very different workplace than the one you left. The majority of employers are trying to create workplace rules that keep workers safe – but you don’t have to let yourself be exploited in the name of workplace safety. The above guidance may help you navigate some common workplace pitfalls. When in doubt, call an attorney.