As many U.S organizations plan for the return of employees to worksites, legal experts Ellen McCann and Tamika Newson weigh in on various legal considerations. We review recent statistics from a Unum survey that shows how employers are facing this issue, with a third of employers saying they do not yet have a plan in place. We then dive into regulatory considerations, practical questions and contingency planning. 

Key takeaways

• As recently as April 23, the EEOC shared guidance stating that employers can ask for a COVID-19 test before they allow workers to return. Employers can also require fitness-for-duty tests, ask workers to wear masks or ask them to stay at home if they are unwell. [05:01]
• Consider your documentation strategy: If you are going to ask a series of questions, such as symptoms or family exposure or recent travel, where is that documented? It needs to be confidential. [07:03]
• Who will ask these questions? Do you want it to be HR, a dedicated response team or a third-party vendor? [07:42]
• Build a game plan for all the scenarios that could come out of this. Do you want to do testing? What sort of testing? What will you do if employees don’t take a test? Or if they test positive but refuse to leave the worksite? [08:08]
• What are you going to require for each individual to return to work — and how are you going to ensure it is consistent? Be wary of making assumptions about employees, such as saying we’ll only bring back “young and healthy” people first. [08:59]
• Best practices include building a dedicated response team that will deal with return to work. It’s advisable to have someone on that team who can give employment law advice. You’ll need to address issues with testing and consistency in how you treat employees, while taking into consideration all the other applicable laws, such as Title VII and local governmental orders. [10:49]

Ellen McCann
Assistant Vice President, Legal Counsel at Unum’s Employment Law Group

Tamika Newson
Assistant Vice President and Legal Counsel, Unum's Employment Law Group

 
More resources: 

EEOC Guidelines

Check out the latest FAQs from the EEOC.
Read more

 Ep. 8: How does COVID-19 impact the ADA?
Listen now

Get in touch:
[email protected]
(207) 200-6685