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Committee Blog: Returning To Work During COVID-19

By Heidi C. Quan and Jeffrey David
Members of NCIA’s Human Resources Committee

Now that COVID-19 shelter-in-place orders have eased restrictions for businesses to re-open across the country, employees and employers alike will have questions about returning to workplaces. Each city, county, and state will have its own specific requirements as to when and how you can re-open your business so you should be sure to check your own regional and municipal requirements. Whether you are getting ready to re-open or have been operating, we provide some FAQ’s to help facilitate a safe and compliant operation for your cannabis business in this new COVID-19 era.

Do my employees have to come in? 

The short answer is yes, with caveats.  You have the right to request that your employees return to work where the local rules allow for it. Please keep in mind that your re-opening must comply with local guidelines in order for you to require your employees to return to work. However, simply notifying them to return to work is only the start of the process. If they qualify for certain leaves, they can take that. Remember that the new Families First Coronavirus Response Act (FFCRA) will be effective until December 31, 2020. If they require accommodations, these need to be considered. Otherwise, if an employee has no special consideration and you need them in order to operate, you can take action if they refuse to return. 

The practical reality is that many people are hesitant and afraid to return to work, especially without knowing how they will be protected. Most employers are being flexible about when and how they are bringing employees back to the workplace, especially if employees have been successful with working from home, have childcare issues, or are in a vulnerable population. If you are creating a workplace protection plan (see FAQ #2), consider sharing that plan in advance with your employees to ease their minds and make sure everyone knows what to do when they return to work.

Always remember, there is a difference between someone saying that they don’t want to return to work because they are generally afraid and someone saying specifically “I’m afraid to come back because I am immunocompromised.” And remember that an employee does not need to specifically ask for an accommodation. Simply advising that they are immunocompromised triggers your requirement to engage in the interactive process, which could result in modified hours, a special mask, moving a workspace, continued telecommuting, different job duties, or a leave of absence.

How can you keep employees safe?

With a pathogen as contagious and lethal as the coronavirus that causes COVID-19, employees will rightly want to know how they will be protected. To reassure employees, create a workplace protection plan that addresses the identification and isolation of sick employees, social distancing, workplace hygiene, and workplace cleaning.  Share all safety steps that are being taken to maintain a safe work environment with your employees. Of course, each workplace is unique and will require different policies tailored to their specific sites. 

General policies you should consider adopting include enforced safe distancing policies, temperature and/or daily question screenings, continued education on the importance of frequent hand-washing, cleaning and sanitizing of workspaces, minimal face touching, staying home when sick and self-monitoring of symptoms. Some examples to help maintain a safe worksite include having ample hand sanitizers available throughout the worksite, keeping office doors closed, wearing appropriate face coverings, marking off the 6-foot spacing with tape or other indicators, designating hallways and stairways as one-way, propping open doors to eliminate the need to touch handles, adding Plexiglas barriers at workspaces. Employers may also consider closing common areas or limiting the number of people who may use such spaces at a time.

Does the company have the right to ask about employee health history and take temperatures?

Yes. Employers are allowed to ask about coronavirus-related symptoms and take the temperatures of employees under guidance from the Equal Employment Opportunity Commission (EEOC), and some states now require it. The EEOC also permits employers to mandate that employees be tested for the virus before entering the workplace under certain circumstances, such as known exposure to someone already infected by the virus. 

Testing should be administered in the least invasive way possible, like utilizing temperature guns or forehead temperatures.  Testing should take place at the earliest possible opportunity at the workplace, to protect employees who have made it through already. Consider staggering start times, so that lines do not form. If a medical professional or person with medical training is available, have them administer the temperatures.  If somebody with medical training is not available or onsite, the company should consider whether managers or HR employees may be trained to administer and read the test results. 

If temperature taking at the workplace is mandated, the time spent being tested and waiting for a test should be considered part of the workday, and the process should be well thought out to eliminate crowding. If an employer requires the temperature be taken at home before coming in to work, the employer should consider allotting a few minutes on employees’ time cards for doing so. Consideration must also be given to providing notice to employees of the temperature screening process, data being collected and kept (if any) and the consequences for failing a screening. Please note that any data collected must be kept securely and separate from employees’ personnel files.

If an employee is sent home after screening, can employers require temperature testing or a doctor’s note to confirm they are no longer infected?

Yes.  If someone has been sent home due to symptoms, administering a temperature test before allowing the employee to return to work is appropriate as the CDC recommends individuals be fever-free for at least 24 hours to ensure they have recovered. The CDC also recommends that anyone who recently had close contact with a person with COVID-19 should stay home for 14 days. The CDC, therefore, recommends that potentially exposed employees who do not have symptoms should remain home for 14 days. In such situations, please refer back to the FFCRA for requirements regarding paid leave.

Additionally, the EEOC has clarified that the ADA permits employers to require employees returning to work to provide a doctor’s note stating they are fit for duty because the inquiry would not be disability-related and/or because confirming that an employee is no longer contagious is a legitimate business necessity. The EEOC notes, however, that “doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus.”

Can employers require employees to wear masks or other personal protective equipment? 

Yes. The Centers for Disease Control and Prevention recommends the use of “cloth face coverings to slow the spread of the virus and help people who may have the virus and do not know it from transmitting it to others.” Many employers are making face coverings part of the work uniform, especially for jobs that require physical proximity. Some states and localities have required face coverings in order for businesses to re-open. Be sure to check your specific region for your own requirements. However, keep in mind that employers may be required to either provide employees with masks or other personal protective equipment or reimburse them for the expense if required to do their jobs. 

Also consider whether or not to require your customers to wear masks. There may or may not be a local requirement to do so, but customers are an additional COVID-19 vector that should be considered when preparing for your employees to return. Just like employers may deny service to customers without a shirt or shoes, they can deny service to customers without a facemask. 

What happens if an employee gets sick with COVID-19? What happens if someone in an employee’s family gets sick with COVID-19 and the employee is the caregiver? 

Employers need to understand state laws and federal programs which have been enacted to deal with this pandemic. The FFCRA provides paid sick leave for people affected by COVID-19, as well as paid emergency family leave under certain circumstances including when the employee’s child care is unavailable for reasons relating to COVID-19 or when the employee must care for someone subject to a quarantine order or advised by a healthcare provider to self-quarantine. The United States Department of Labor has issued a helpful summary of FFCRA.

What if a co-worker gets sick? 

Privacy rights must be maintained, but employers must also maintain a safe workplace and the law allows for them to do so. If temperature screening reveals a fever, that employee should be immediately sent home with return-to-work instructions. The employer should follow up with the employee regarding who they worked with, all the locations they worked and any other information to be able to notify all individuals who the employee came into contact with and comply with the most current local, state, and federal public health recommendations. If an employee calls in sick specifically with COVID-19, the employer should do the same. Actions may include closing the worksite, doing a deep cleaning, and/or requiring employees to work from home for a period of time. If deep cleaning is called for, the CDC recommends hiring professionals.

Under no circumstances should sick employees be identified by name. Notification to affected employees must not reveal any personal health-related information of an employee. 

 

Committee Blog: Employee Privacy Guidelines In A Time Of COVID-19

By NCIA’s Human Resources Committee 

Privacy Guidelines

As employers across the country bring back their employees, coronavirus risks remain top of mind. These concerns are important to ensure both the safety of their employees and the ability of their businesses to remain open. No one wants their employees to experience a spike in infections, or to subsequently close down as a result. However, protecting employees and businesses from COVID-19 is not as simple as asking an employee if they are sick. Federal and state laws restrict the type of medical information an employer can require an employee to share, even during the pandemic.

Under the Federal Americans with Disabilities Act (“ADA”) and the California Fair Employment and Housing Act (“FEHA”), medical inquiries are generally not allowed unless they are job-related and consistent with business necessity. Under this standard, medical inquiries are allowed if the employee poses a “direct threat” to him/herself or others because of a medical condition. FEHA regulations provide that factors to be considered when determining the merits of the direct threat defense include, but are not limited to:

  • the duration of the risk;
  • the nature and severity of the potential harm;
  • the likelihood that potential harm will occur; and
  • the imminence of the potential harm.

FEHA regulations say that the analysis of these factors should be “based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence.”

Unfortunately, this leaves the answer to whether employers may make medical inquiries or take temperatures “it depends.” Ultimately it becomes a business/risk tolerance decision. Asking employees questions about their medical condition and taking their temperatures may be more defensible if there has been documented exposure to COVID-19 in the workplace or a high rate of contagion in the community. 

The answer will also depend on what the Centers for Disease Control (“CDC”) determines. If the CDC makes a determination that COVID-19 is significantly more severe than the seasonal flu, it could pose a “direct threat.” Under the ADA, a direct threat is “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” When the CDC advises testing, employers will have better standing to require it. CDC guidance is available here.

The Equal Employment Opportunity Commission has also issued specific COVID-19 guidance. The EEOC has advised employers that they may ask all employees who physically enter the workplace if they: (i) have COVID-19; (ii) have been tested for COVID-19; or (iii) are experiencing symptoms associated with COVID-19. Employers may also check the temperatures of employees entering the workplace. If an employee refuses to answer or refuses to submit to a temperature check, the employer may refuse to permit him or her to enter the workplace. However, employers should reassure refusing employees that the questions are simply designed to ensure workplace safety.

Employers may then single out individual employees for temperature checks or questioning only if the employer has a reasonable belief, based on objective evidence, that the employee has COVID-19 or symptoms associated with COVID-19. Employers may also ask employees if they have had contact with anyone who has been diagnosed with COVID-19 or who has symptoms of COVID-19.  

If a manager learns that an employee has COVID-19 or symptoms associated with COVID-19, the manager may disclose this information to which employees are necessary to take action consistent with CDC guidance. As a general rule, employers should try to limit the number of necessary employees” who know the employee’s identity. Everyone informed of the employee’s identity should be told to keep the information confidential. This includes telling others that an employee may be absent or working from home, but not explaining why.  

If employers do decide to take temps, there are multiple additional issues to consider: who will do the testing? What training? Will nonexempt employees be paid for their time undergoing testing? What will the employer do if the employee refuses? What information is recorded? All of these questions should be addressed in advance, and the answers should err on the side of caution. Tests should be simple, as non-invasive as possible, and as little data should be recorded as possible. Data for each employee should be recorded separately; an employer should not compile a single list of employees and their temperatures. An employer could, however, maintain a record of a single employees’ temperature of time. In other words, a single piece of paper could track an individual employee’s temperature history, but not the entire workforce’s temperature history.

In summary, employers must be careful to ensure their employees’ privacy rights remain respected and protected as they return to work. Employers may take reasonable precautions to ensure infected and at-risk individuals do not work, but must be careful in the questions they ask and the manner in which they record and keep the information. If a diagnosis is confirmed, employers must also be careful about who that information is shared with. Everyone wants a safe workplace; employers must simply keep in mind that a safe workplace is one that ensures an employee’s physical safety as well as their privacy.  

NCIA’s Human Resources Committee is comprised of human resource practitioners devoted to bringing best practices to the cannabis industry. Their focus is educating and bringing awareness to misclassification of employees, promoting guidelines for employee safety, clarification on wage and hour issues in the industry and creating checklists to being a legitimate employer.

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