By Peter Langdon
NOTE: THIS INFORMATION MAY BE MODIFIED BY FUTURE REGULATIONS OR GUIDANCE FROM THE CENTERS FOR DISEASE CONTROL AND PREVENTION (”CDC”) AND STATE AND LOCAL AUTHORITIES. EMPLOYERS ARE ADVISED TO SEEK LEGAL ASSISTANCE PRIOR TO TAKING ANY ACTIONS OR MAKING ANY DECISIONS BASED ON THE INFORMATION SET FORTH BELOW.
As restrictions related to COVID-19 are lifted, employers will continue to face new questions and other legal issues related to the impacts of COVID-19 in the workplace. This Question and Answer Guide addresses several common COVID-19 employment and return-to work considerations.
1. Can an employer screen job applicants for symptoms of COVID-19?
Yes, but only after making a conditional job offer. The employer may do this as long as it screens all employees entering the same type of job.
2. Can an employer take a job applicant’s temperature as part of a post-offer, pre-employment medical exam?
Yes, a medical exam is permitted after an employer provides a conditional job offer.
3. Can an employer delay the start date of an applicant who has COVID-19 or symptoms associated with COVID-19?
Yes, under the current CDC guidance, an individual who has COVID-19 or associated symptoms should not be in the workplace.
4. Can an employer rescind a job offer because a new employee is unable to begin work based on COVID-19 or associated symptoms?
Yes. If an individual cannot safely enter the workplace, the employer may withdraw the offer. However, in doing so, an employer may subject itself to a breach of contract claim and should get legal advice in advance.
5. Can an employee collect workers’ compensation benefits if the employee contracts COVID-19?
This is an unresolved issue. Generally, Nebraska workers’ compensation laws do not provide a basis for compensation for ordinary illnesses, such as the cold or flu. An illness or disease is compensable as a workers’ compensation injury if it is considered an occupational disease. In Nebraska, an “occupational disease” is “a disease which is due to the causes and conditions which are characteristic of and peculiar to a particular trade, occupation, process or employment and excludes all ordinary diseases of life to which the general public is exposed.” It is still yet to be seen whether, and to what extent, any COVID-19 claims will be covered under workers’ compensation insurance.
6. Is an employer liable if an employee contracts COVID-19 at work?
Recently, employers have been sued for claims other than workers’ compensation. For example, an employer was recently sued under theories of public nuisance and negligence; (Rural Cmty. Workers Alliance v. Smithfield Foods, Inc., 2020 WL 2145350, *1 (W.D. Mo. May 5, 2020) ) alleging the employer failed to take adequate steps to prevent transmission of COVID-19 at the place of employment which endangered workers and community members. It remains to be seen whether, and to what extent if any, an employee can be successful on such a suit. Complying with guidance from the CDC and state and local authorities can help an employer minimize the risk of liability resulting from COVID-19 exposure.
7. If an employer requires employees to wear face coverings or masks, is the employer required to provide and/or pay for the face coverings or masks?
If an employer requires its employees to wear PPE (including surgical masks) at the workplace it must provide them at no cost to the employee. However, employers are not required to provide cloth face coverings.
8. Are employers required to accommodate employees with preexisting mental illnesses that are exacerbated by COVID-19?
Most likely. The Equal Employment Opportunity Commission explains that employers may need to accommodate employees with existing mental illnesses who may have more difficulty dealing with the disruptions caused by the COVID-19 pandemic, absent an undue hardship to the employer. As with accommodations in general, employers should engage in an interactive process to determine the disability, request medical documentation when appropriate, and discuss the reasonable accommodations available while addressing whether the accommodation may pose an undue hardship to the employer.
9. Are employers required to accommodate employees with underlying physical health conditions that render them high risk for contracting COVID-19?
Most likely. The CDC has recommended that individuals suffering from certain medical conditions that place the individual at higher risk for contracting COVID-19 should request a reasonable accommodation. As with accommodations generally, employers should engage in an interactive process to determine the disability, request medical documentation when appropriate, and discuss the appropriate reasonable accommodations available without placing an undue hardship on the employer.
10. What should an employer do if an employee tests positive for COVID-19?
The employee should be sent home for at least fourteen (14) days and directed to consult a health care provider. The employer should conduct contact tracing and identify all employees who may have encountered the virus or anyone exposed to the virus while ensuring the identity of the infected employee is not disclosed.
11. What should an employer do if an employee reports he or she was exposed to someone with COVID-19?
The employer should treat the situation as though the employee is infected. The employer should let the employees know that the employer is utilizing caution for the benefit of its workforce.
12. What should an employer do if an employee was exposed to COVID-19 but found out after interacting with clients or customers?
In addition to taking appropriate measures to deal with the infected person, the employer should also promptly tell the client or customer that he or she came into close contact with an employee who has or was exposed to the virus.
For more information, please contact us at 402.392.1250 to speak with Pete Langdon or Harvey Cooper.