EEOC confirms coronavirus antibody testing not permitted as part of return-to-workplace program, although active-virus testing may be permitted

The EEOC updated its FAQ guidance with Q&A no. A7, advising that an employer may not require coronavirus antibody testing (which is the blood test done to see if the person’s blood suggests they were previously exposed to the virus sufficient to create antibodies) as part of a company’s return-to-workplace program. However the EEOC advised (1) this may change as the science develops and (2) an employer may be able to require active virus testing (which is commonly done with a nasal swab) if such testing is uniformly required and “job-related consistent with business necessity.”

A.7.  CDC said in its Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace.” In light of this CDC guidance, under the ADA may an employer require antibody testing before permitting employees to re-enter the workplace? (6/17/20)

No. An antibody test constitutes a medical examination under the ADA. In light of CDC’s Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace,” an antibody test at this time does not meet the ADA’s “job related and consistent with business necessity” standard for medical examinations or inquiries for current employees. Therefore, requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA.  Please note that an antibody test is different from a test to determine if someone has an active case of COVID-19 (i.e., a viral test).  The EEOC has already stated that COVID-19 viral tests are permissible under the ADA.

The EEOC will continue to closely monitor CDC’s recommendations, and could update this discussion in response to changes in CDC’s recommendations.

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OSHA issues updated FAQ confirming cloth face coverings and general masks worn re coronavirus are not PPE

OSHA issued an updated FAQ re cloth face coverings and the kind of masks commonly worn regarding coronavirus (called “surgical” masks by OSHA, as distinguished from what it calls “respirators (e.g., filtering face pieces)”).

OSHA explains that cloth face coverings are worn, not to protect the wearer, but to reduce the expression of virus by the wearer, what OSHA calls “source control.”

Face coverings are intended to prevent wearers who have Coronavirus Disease 2019 (COVID-19) without knowing it (i.e., those who are asymptomatic or pre-symptomatic) from spreading potentially infectious respiratory droplets to others. This is known as source control.

As such, OSHA says, cloth face coverings are not PPE and need not be provided by or paid for by an employer. Likewise surgical masks and even respirators, when worn for source control, are not PPE and need not be provided by or paid for by an employer.

Cloth face coverings are not considered personal protective equipment (PPE) and are not intended to be used when workers need PPE for protection against exposure to occupational hazards. As such, OSHA’s PPE standards do not require employers to provide them.

Although not required by OSHA, “OSHA generally recommends that employers encourage workers to wear face coverings at work.” In addition, even when cloth face coverings are encouraged, OSHA also recommends that employers encourage social distancing in the workplace. (Note: Employers should remember OSHA is only one source of applicable law. Employers need to comply with all applicable laws, some of which, especially at the state and local level, do mandate social distancing, de-densifying, and even cloth face coverings.)

OSHA’s FAQ reminds employers that some companies must provide masks and even respirators as PPE, for example healthcare employers whose workers are known to be exposed to coronavirus. Likewise OSHA reminds all employers they face a General Duty citation if they fail to take feasible and effective means to eliminate a recognized hazard in the workplace; OSHA’s FAQ suggests it may rely upon evidence to include the failure of an employer to encourage the use of cloth face coverings or surgical masks and the practice of social distancing.

UPDATE: November 18, 2020, OSHA issued a statement confirming again that cloth face coverings are not PPE within the meaning of OSHA requirements (though employers may require them in their workplaces).

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Arbitration agreement held enforceable despite impossibility of complying with governing-rules language

The Colorado Court of Appeals recently held that an arbitration agreement is enforceable even if complying with its governing-rules language is impossible. In the case, the parties entered into an arbitration agreement calling for any dispute to be governed by the rules of a particular arbitration company. One of those rules was that only that arbitration company could be the arbitrator applying its rules; in other words, one rule was that other arbitrators could not apply its rules. The problem was that the arbitration company did not do the kind of arbitrations that the parties intended. When a dispute later arose, they still did not. Therefore, it was impossible for the plaintiff to bring her case before that company, and, she contended and the trial court agreed, it would have been a violation of its rules — the rules agreed to by the parties — if a different arbitrator were to apply those rules. The Colorado Court of Appeals disagreed, holding that the parties had agreed to arbitrate, so arbitrate they must, though whoever they pick to be the arbitrator should still apply the other company’s rules for arbitration (despite the fact those rules prohibit other companies from apply those rules). The Court cautioned its conclusion might have been different if the parties had expressly stated that the prior company was their exclusive selection for an arbitrator.

Source: Johnson-Linzy v. Conifer Care Communities, 2020 COA 88 (6/4/2020).

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SCOTUS holds LGBTQ status is protected within Title VII’s meaning of “sex”

The Supreme Court held that LGBTQ status is already protected within Title VII’s meaning of the word “sex.”

Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.

In authoring the majority opinion, Justice Gorsuch observed that the word “sex” would likely not have been read that way by the drafters of Title VII in 1964, but the majority held that the term is unambiguous as drafted; according to well-established precedent, resort to legislative history is not permitted when a statutory text is unambiguous.

Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.

The majority confirmed that, while Title VII’s “sex” protections directly protect such traits/classes, plaintiffs may also assert sex-stereotyping claims related to such traits/classes, just as plaintiffs can assert sex-stereotyping claims based on male-female cys-gendered status.

To be sure, there may be cases in which a gay, lesbian, or transgender individual can make a claim like the one in Price Waterhouse. That is, there may be cases where traits or behaviors that some people associate with gays, lesbians, or transgender individuals are tolerated or valued in persons of one biological sex but not the other. But that is a different matter.

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OSHA believes some employers have a duty to investigate work-relatedness of coronavirus cases

If an employee tests positive, does an employer have an obligation to investigate whether it is “work-related”? OSHA thinks so, now, but investigating and determining “work-relatedness” may not be as easy — or as lawful — as OSHA believes.

OSHA issued a revised enforcement guidance that now imposes on some employers a duty to investigate the possible “work-relatedness” of employee coronavirus cases and, if confirmed, to comply with OSHA’s recordkeeping requirements regarding work-related injuries and illnesses.

Employers may wish to review this summary of the revised guidance by SHRM.

To determine the work-relatedness of an employee’s having coronavirus, the employer should conduct an investigation, which may be as simple as talking to the individual. OSHA suggests that an employer’s investigation should include:

(1) (asking) the employee how he believes he contracted the COVID-19 illness;

(2) while respecting employee privacy, discuss(ing) with the employee his work and out-of-work activities that may have led to the COVID-19 illness; and

(3) review(ing) the employee’s work environment for potential SARS-CoV-2 exposure.

Unfortunately this may not be as simple as OSHA makes it sound. Employers are reminded of the EEOC and other legal constraints on medical inquiries. Employers should consult with legal counsel as they attempt to thread the needle between the conflicting requirements of OSHA and the EEOC.

OSHA believes a case of coronavirus may be considered work-related if “(f)or instance:

COVID-19 illnesses are likely work-related when several cases develop among workers who work closely together and there is no alternative explanation.

An employee’s COVID-19 illness is likely work-related if it is contracted shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19 and there is no alternative explanation.

An employee’s COVID-19 illness is likely work-related if his job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.

An employee’s COVID-19 illness is likely not work-related if she is the only worker to contract COVID-19 in her vicinity and her job duties do not include having frequent contact with the general public, regardless of the rate of community spread.

An employee’s COVID-19 illness is likely not work-related if he, outside the workplace, closely and frequently associates with someone (e.g., a family member, significant other, or close friend) who (1) has COVID-19; (2) is not a coworker, and (3) exposes the employee during the period in which the individual is likely infectious.

CSHOs should give due weight to any evidence of causation, pertaining to the employee illness, at issue provided by medical providers, public health authorities, or the employee herself.

OSHA’s recordkeeping requirements may not apply to employers with fewer than 10 workers or with workplaces recognized by OSHA as low hazard.

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PPPFA grants greater flexibility for PPP loan borrowers

Congress passed and President Trump signed the PPPFA (Paycheck Protection Program Flexibility Act), which grants greater flexibility for PPP loan borrowers.

Among its changes, the PPPFA

  • Reduces the required ratio of loan usage on payroll from 75% to 60%
  • Permits loan funds to be used over a 24- not 8-week covered period
  • Extends the deadline to rehire workers from June 30 to December 31, 2020
  • Adds exceptions to the headcount requirement for rehiring
  • Extends the repayment term from 2 to 5 years

Many of the PPPFA’s changes are options available but not necessarily mandated for existing PPP loans. Companies that have taken out a PPP loan should contact their lender and tax/accounting professionals to learn which of the PPPFA’s options may now be available to them.

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Coronavirus-safety lawsuits against employers begin

Employees have begun filing lawsuits against their employers alleging inadequate safety measures in place to protect against coronavirus.

So far, two lawsuits have reached an initial-decision stage:

  1. Rural Community Workers Alliance v. Smithfield Foods, Inc., case no. 5:20-CV-06063-DGK. See Order Granting Defendant’s Motion to Dismiss dated 5-5-2020.
  2. Massey v. McDonald’s, case no. 2020CH04247. See initial complaint, which news reports advise was sustained against a motion to dismiss, by way of a verbal order from the bench that has not (yet?) been reduced to writing and that, instead, set the matter for a forthwith hearing regarding a possible preliminary injunction.

The McDonald’s complaint alleges that the company has taken inadequate safety precautions to protect against coronavirus and asserts claims that, as a result, its restaurant operations at the locations identified in the complaint constitute “public nuisances” that endanger the public, including not only customers but the plaintiff (and requested class-action members) employees and, further constitute the tort of negligence against the plaintiffs (and requested class-action members) who are employees. The complaint further includes a negligence claim against individual store owners.

While the McDonald’s complaint has reportedly been set for a preliminary injunction hearing, the plaintiffs may take little comfort from the Smithfield Foods case, which was also set for such a hearing, but then dismissed.

Employers can expect to see more of such lawsuits filed as the country struggles through the coronavirus crisis, but it seems the court in the Smithfield Foods case reached the right conclusion. Coronavirus is a national crisis. It is not a risk specific to any given workplace. COVID-19 is a novel virus. Not just companies, and individuals, but the government itself is struggling to determine what proper safety measures are in the workplace.

Most importantly in these cases, workplace safety is within the exclusive jurisdiction of OSHA. Congress created extensive regulatory procedures and protections within the OSHA administrative framework. One such right is not a private right of action by workers who wish to challenge workplace safety measures. Employees must pursue their concerns through the OSHA process, not by filing private lawsuits in court.

To the extent plaintiffs try to cloak their negligence claims as “public nuisance” claims, the same reasoning applies, as the court noted in the Smithfield Farms case.

The parties agree that the Plant cannot be a public nuisance simply by virtue of the fact that it is a meat-processing plant during a global pandemic. Moreover, in this case, Smithfield has implemented substantial health and safety measures to protect Plant workers, and no employees of the Plant have been diagnosed with COVID-19. While Plaintiffs argue that Smithfield could do more to protect its workers, that is not the issue before this Court. The issue is whether the Plant, as it is currently operating, constitutes an offense against the public order. Because of the significant measures Smithfield has implemented to combat the disease and the lack of COVID-19 at the facility, the Plant cannot be said to violate the public’s right to health and safety.

The court there concluded its analysis by emphasizing that it was sympathetic to the plaintiffs’ concerns, but that those concerns should be raised to the appropriate workplace safety agencies, primarily OSHA.

Plaintiffs are naturally concerned for their health and the health of their community in these unprecedented times. The Court takes their concern seriously. Nevertheless, the Court cannot ignore the USDA’s and OSHA’s authority over compliance with the Joint Guidance or the significant steps Smithfield has taken to reduce the risk of a COVID-19 outbreak at the Plant.

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