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6/18/20 COVID-19 Brief: COVID-19 in the Context of ADA, Rehabilitation Act and Other EEO Laws

The demands of a pandemic response sometimes seem to be at odds with employment law. For some, the well-founded fear of making a mistake in compliance has caused confusion and hesitation in implementing COVID-19 policies and practices.

A Message on COVID-19 from WorkSTEPS Chief Medical Officer Dr. Ben Hoffman

Preventing COVID-19 in the Context of ADA, Rehabilitation Act and Other EEO Laws

It’s not easy trying to navigate the conflicting demands of different stakeholders, but it’s part of life. As individuals, we can be torn between obligations at work, at home and in our community; in our job roles, we sometimes have more than one reporting relationship (the so-called ‘dotted line’ report); and companies need to serve the interests of their shareholders, but also customers, employees, the environment and the communities they serve.

In striving to protect employee and customer health and to prevent business-disrupting outbreaks of COVID-19, employers are bumping into ADA, Rehabilitation Act, and other EEO laws. The demands of a pandemic response sometimes seem to be at odds with employment law. For some, the well-founded fear of making a mistake in compliance has caused confusion and hesitation in implementing COVID-19 policies and practices.

Help Navigating the Conflict – Practical Questions and Answers

On June 11, the EEOC released an update titled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws: Technical Assistance Questions and Answers.”

The document addresses the dilemma employers face in its introduction, stating: “The EEO laws, including the ADA and Rehabilitation Act, continue to apply during the time of the COVID-19 pandemic, but they do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state/local public health authorities about steps employers should take regarding COVID-19.”

While it’s good to know that the EEOC recognizes the challenge employers are up against, that statement alone leaves a lot of questions unanswered. So, the balance of the document consists of practical questions and answers meant to help employers navigate potential conflicts between recommended COVID-19 policies and employment laws. Here are some examples of the questions asked/answered to give you a sense of the pragmatic value of the information:

  • During a pandemic, how much information may an ADA-covered employer request from employees who report feeling ill at work or who call in sick?
  • May an employer administer a COVID-19 test (a test to detect the presence of the COVID-19 virus) before permitting employees to enter the workplace?
  • May an employer disclose the name of an employee to a public health agency when it learns that the employee has COVID-19?
  • May an employer postpone the start date or withdraw a job offer because the individual is 65 years old or pregnant, both of which place them at higher risk from COVID-19?
  • The CDC identifies a number of medical conditions that might place individuals at “higher risk for severe illness” if they get COVID-19. An employer knows that an employee has one of these conditions and is concerned that his health will be jeopardized upon returning to the workplace, but the employee has not requested accommodation. How does the ADA apply to this situation?
  • Is there a right to accommodation based on pregnancy during the pandemic?

…and this is just a small sample of the Q&A.  

Putting the Guidance to Work

Consider the following steps to help your organization navigate the sometimes-competing demands of your COVID-19 strategy and employment law:

  • Build Expertise: Make sure key staff – Human Resources leaders and site-designated COVID-19 leaders (as recommended in this article) – read the Q&A Guidance and that they identify and discuss specific questions/answers relevant to your situation.
  • Create Awareness: Managers and supervisors can often be at the front lines of the conflict between COVID-19 policies and employment law. They need to know that guidance is getting better, and that they should bring issues to the attention of HR and/or COVID-19 site leads for clarification. This is particularly important if there is a general perception that there is no clear guidance and a lack of confidence that front-line questions can be answered with clear direction.
  • Share Case Examples: As potential conflicts arise and are successfully addressed, share simple case examples. While maintaining confidentiality, simply describe the situation, how it was resolved, and how the resolution meets COVID-19 and employment law aims. \

I hope that by sharing this resource we have further equipped you to protect health while safely ramping up business operations. If your organization needs help developing or implementing COVID-19 policies and practices, know that we have built up a full range of capabilities to meet your needs. You can learn more about our services here.

Finally, don’t hesitate to let us know if there is a COVID-19 question you have or topic you’d like to see addressed in this brief.  

Be well and stay safe.

Ben Hoffman, MD, MPH
Chief Medical Officer, WorkSTEPS

For more from Dr. Hoffman, connect with him on LinkedIn.

Medical:


Area Reported Cases Deaths Recovered
Global 8,321,791 447,655 4,354,228
United States 2,217,714 119,322 903,574

Source

In six months, there have been greater than 8 million confirmed cases of COVID-19 globally, and at least 447,655 people have died. According to a new modeling study published in the Lancet, roughly 1.7 billion people, 22% of the global population, have at least one underlying condition that puts them at increased risk of severe COVID-19 if infected (ranging from <5% of those younger than 20 years to >66% of those aged 70 years or older). US states in the South and Midwest are experiencing an uptick in cases. A new projection estimates the US fatalities will begin rising sharply in September and surpass 200,000 by October. The Institute for Health Metrics and Evaluation now projects 201,129 deaths from the coronavirus by Oct. 1, up 31,239 from a projection the organization made less than a week ago.  

On Monday, the FDA announced that it was revoking emergency authorization of two malaria drugs to treat COVID-19. Hydroxychloroquine and chloroquine were thought to show positive results. Several observational studies have found no benefit in COVID-19 patients. Some studies have also found that use of hydroxychloroquine and chloroquine is associated with an increased risk of serious heart rhythm complications in some patients. As a result, current US treatment guidelines don't recommend the use of the drugs in hospitalized COVID-19 patients outside of a clinical trial.

Last week, surgeons in Chicago performed a double lung transplant for a patient with significant lung impairment from the COVID-19. This was reported to be the first lung transplant in a COVID-19 survivor in the US. The patient is in her 20s and was on a ventilator and heart-lung machine for almost two months.

Mitigation / Suppression:

A study from University of Cambridge researchers this week found that widespread mask-wearing can help prevent a resurgence of the virus with less reliance on lockdowns that have proven economically devastating. The modeling in the study found that if 50 percent or more of the population routinely wore masks, each infected person would on average spread the virus to less than one additional person, causing the outbreak to decline, the university said. With a policy that all individuals must wear a facemask all of the time, a median effective COVID-19 R0 of below 1 could be reached, even with homemade cloth masks which have less efficacy than N-95 masks.

CDC released new guidance considerations to enhance protection of people and communities and preventing spread of  COVID-19 for people leaving the house to engage in activities (with the disclaimer that these are not meant replace—any state, local, territorial, or tribal health and safety laws, rules, and regulations with which gatherings must comply). While current mitigation strategies remain the safest ways to protect oneself, the considerations offer a stratified approach to reentry. The risk of COVID-19 spreading at events and gatherings increases as follows:

  • Lowest risk: Virtual-only activities, events, and gatherings.
  • More risk: Smaller outdoor and in-person gatherings in which individuals from different households remain spaced at least 6 feet apart, wear cloth face coverings, do not share objects, and come from the same local area (e.g., community, town, city, or county).
  • Higher risk: Medium-sized in-person gatherings that are adapted to allow individuals to remain spaced at least 6 feet apart and with attendees coming from outside the local area.
  • Highest risk: Large in-person gatherings where it is difficult for individuals to remain spaced at least 6 feet apart and attendees travel from outside the local area.

Sinovac Biotech announced preliminary results on Saturday showing its experimental COVID-19 vaccine generated immune responses in patients. The vaccine, called CoronaVac, induced neutralizing antibodies in above 90% of people who were tested 14 days after receiving two injections, two weeks apart. The preliminary results were from a 600-patient, placebo-controlled Phase 2 study. There are currently more than two dozen research efforts underway to develop protective vaccines against the novel coronavirus.

The NIH has launched a centralized, secure platform to store and study the vast medical record data from people diagnosed with COVID-19 across the nation. It is called the National COVID Cohort Collaborative (N3C). A centralized national COVID-19 dataset will help provide robust data to generate statistically valid results on a powerful scale. Data analytics can also be used by researchers and clinicians to quickly examine and answer new COVID-19 hypotheses. 

Corporate:

The CDC released new guidelines for workers in high density critical workplaces after a COVID-19 case is identified:

Source

The testing strategy outlined above is suggested for employers to augment existing guidance to reduce workplace transmission. CDC recommends that after a COVID-19 case is identified, testing strategies of exposed employees be considered to prevent spread, and identify size of workplace outbreaks. When symptom screening and subsequent testing identify a confirmed case of COVID‐19, interviewing and testing potentially exposed co‐workers should occur as soon as possible. Based on the likelihood of exposure, characteristics of the workplace, and results of contact investigations, the tiered approach to testing these co‐workers may be used. In selecting a strategy, employers should place appropriate consideration to balancing continuing operations with employee safety.

The Work From Home WorkSTEPS Medical Team:

Ben Hoffman, MD, MPH
Chief Medical Officer

Tony Nigliazzo, MD
Medical Director

Loraine Kanyare, MSN, MPH, RN
Director of Case Management

Robert L. Levitin, MD
Physician Consultant

Lynda Phillips, LVN
Nurse Case Manager

Codey Church, LVN
Nurse Case Manager

Kerry Womack, LVN
Nurse Case Manager

Chuck Reynolds
Strategic Communications Consultant

This Guidance (“Guidance”) is provided for informational and educational purposes only. It is not intended as Legal Advice or Medical Advice. Adherence to any recommendations included in this Guidance will not ensure successful diagnosis or treatment in every situation. Furthermore, the recommendations contained in this Guidance should not be interpreted as setting a standard of care or be deemed inclusive of all proper methods of care nor exclusive of other methods of care reasonably directed to obtaining the same results. The ultimate judgment regarding the propriety of any specific therapy must be made by the physician and the patient in light of all the circumstances presented by the individual patient, and the known variability and biological behavior of the medical condition. Similarly, this Guidance is based on current advice, comments, and guidance from the EEOC, CDC and the CMS made publicly available. The ultimate judgement regarding the propriety of any specific employment action must be made by the company and attorney in light of all of the circumstances presented by the company, state and federal rules existing at the time and the then current state of the National Pandemic. This Guidance and its conclusions and recommendations reflect the best available information at the time the Guidance was prepared. The results of future studies or changes in rules, regulations or laws may require revisions to the recommendations in this Guidance to reflect new data. WorkSTEPS does not warrant the accuracy or completeness of the Guidance and assumes no responsibility for any injury or damage to persons or property arising out of or related to any use of this Guidance or for any errors or omissions.

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