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Public Employers Face Tough Choices Related to Employee and Workplace Safety

August 12, 2020

by Adam L. Santucci and Langdon T. Ramsburg 

Public sector employers in Pennsylvania will continue to face shifting rules, guidance, recommendations, and standards as the COVID-19 pandemic continues to ebb and flow.  Careful consideration must be given to workplace safety protocols, employee screening, leaves of absence, and post-travel quarantine.  Rest assured, all employers (public and private) are wrestling with the same issues, but public employers do face some unique challenges, because of the critical services provided by their employees.  Despite the uncertainty, elected and appointed officials, and their advisors, should consider certain best practices to ensure that critical public services continue safely.  Some of these best practices are summarized below. 

Governor Wolf and Department of Health Orders and Guidance
At one point, the Department of Health indicated that local governments were not been required to suspend in-person operations, and were not been required to follow the Secretary of Health’s Employee Safety Order. However, the Governor and the Secretary of Health have repeatedly encouraged municipalities to limit in-person operations and implement safety protocols to the extent possible.  Those Orders and the related guidance are designed protect employees and the customers and members of the public interacting with employees.  In addition, much of the guidance is based on recommendations from the Centers from Disease Control and Prevention (“CDC”).  Therefore, any municipality or municipal entity that chooses to depart from the guidance should do so for valid operational or other reasons that are well documented.

As Pennsylvania transitioned back to a “Green Phase,” Governor Wolf’s directives were clear.  Employers resuming in-person operations were required to provide masks for employees and make it mandatory that employees wear masks while at work, except during meal breaks.  The nuance of this requirement – which has since been expanded to apply to all Pennsylvanians when they leave their homes – can be difficult to navigate, depending on the job being performed by employees.

Employees who work physically demanding jobs or in high temperature environments may face health risks if required to wear a mask for extended periods while working – and guidance from the Pennsylvania Department of Health does not require masks in any situation where a mask would cause a safety or health risk.  See Department of Health FAQS here.  By contrast, workers whose jobs are less physically demanding or are located in climate-controlled environments will typically be able to safely wear face masks for extended periods while at work.  Likewise, employees who have regular, in-person customer contact will have a heightened need for protection regardless of whether they work in heat; in these situations some employers may opt to require face shields in lieu of masks.  

There also may need to be exceptions for employees with medical conditions.  In those situations, employers must consider their obligations under the Americans With Disabilities Act (“ADA”).  

Public employers should adopt a clear policy regarding masks in the workplace and while employees are working.  The policy should reflect if and when the mask requirement will be relaxed, and a process for requesting exceptions to the policy.  The policy should be distributed to all employees. 

Employee Testing
In response to the pandemic, the Equal Employment Opportunity Commission (“EEOC”) issued guidance for employers.  See Pandemic Preparedness in the Workplace and the Americans With Disabilities Act.  One question addressed was the lawfulness of employee testing.  The Guidance reiterates that the ADA requires that any mandatory medical test of employees must be “job related and consistent with business necessity.”  It goes on to clarify that during a pandemic, an employer may take certain precautionary steps, such as testing for the virus, to prevent employees with COVID-19 from entering the workplace, because an individual with the virus will pose a direct threat to the health of other employees.  

The guidance further states that to comply with the ADA, employers who test their employees for COIVD-19 must ensure that the tests are accurate and reliable.  Employers are encouraged to regularly review guidance from various authorities, such as the U.S. Food and Drug Administration, the CDC and other public health agencies, concerning what is considered to be safe and reliable testing.  The EEOC also cautions employers on the possibility of false positives and false negatives and that an employee who tests negative at one point, could acquire the virus at a later date which means that testing, unless it is conducted on a daily basis, may not be an effective tool for employers.  The EEOC has also made clear that the ADA does not permit employers to require antibody testing before allowing employees to re-enter the workplace.  

Some employers are screening employee temperatures daily, or requiring employees to self-certify that they are symptom-free.  Other employers are only temperature screening following an employee positive test, which is required for covered employers by an Order of the Secretary of the Department of Health.

Employers who decide to implement COVID-19 testing must do so consistently, and should be prepared to address potential objections by employees to the testing for various reasons, such as religious beliefs, and employees who refuse testing.  Further, to comply with the requirements of the ADA, employers will have to ensure the confidentiality of employee medical records.  Such records must be maintained separately from the employee’s personnel file.  Medical information includes not only test results but also any notes or questionnaires an employer uses when screening an employee about possible exposure and symptoms.

Paid Leave
The Families First Coronavirus Response Act (“FFCRA”) grants eligible employees Emergency Paid Sick Leave (“EPSL”) and Expanded Family and Medical Leave (“EFMLA”) for certain COVID-19 related absences.  It appears that the FFCRA applies to nearly every public sector employer.  The FFCRA provides eligible employees up to 80 hours of EPSL for specified reasons related to COVID.  It also provides up to 12 weeks of EFMLA to care for a son or daughter whose school or place of care is closed or unavailable for COVID-related reasons.  The first two weeks (10 days) of EFMLA are not paid, but the remaining 10 are paid.  Often, but not always, EPSL is available for the first two unpaid weeks of EFMLA.  

We use the term eligible employees, because not all employees are able to utilize EPSL and EFMLA.  Certain healthcare providers and emergency responders may be excluded from coverage. 

The Department of Labor has adopted regulations implementing the FFCRA, which answered some key questions and clarified some of the FFCRA’s provisions.  For example, the regulations provide that employers may elect to exclude “emergency responders,” and defines that term quite broadly.  Of interest for public sector employers, the regulations provide that the term emergency responders includes law enforcement officers, fire fighters, EMTs, paramedics, 911 operators and public works personnel.  

Public employers should certainly consider adopting a policy to implement the FFCRA.  Such policy should not only clearly define who is eligible, but should also specify the leave entitlements and the procedures for requesting EPSL and EFMLA.  Employers can require reasonable notice procedures and generally can require the employee to comply with their usual and customary notice and procedural requirements for requesting leave.  However, there are limitations; employers cannot require notice to be given in advance of the leave, it can only be required after the first workday (or part of workday) for which the employee takes leave.  Thereafter, employers can require notice as soon as practicable.    

An employer can also require supporting documentation.  Regardless of whether the employee is taking paid sick leave or paid family leave, the employee is required to provide documentation containing the following: (1) his/her name; (2) dates for which leave is requested; (3) qualifying reason for leave; and (4) a statement that the employee is unable to work because of a qualified reason.  The documentation requirements do not end there.  Additional documentation is required depending upon the basis for the leave.  These documentation requirements should also be spelled out in the applicable policy.

As schools start to resume instruction next month, the most prevalent need for EPSL or EFMLA may be related to childcare.  If the basis for EPSL or EFMLA is a school closure or the unavailability of childcare, the employee must provide: (1) the name of the son or daughter; (2) the name of the school or place of care that has closed; (3) and a representation that no other suitable person will be caring for the son or daughter during the period of leave.  

A public sector employer will be well served by a clear policy that outlines employee rights and employee obligations with respect to EPSL and EFMLA, and such a policy should ensure consistency in application and documentation.  

Post- Travel Quarantine
Within the last few weeks, Governor Wolf has also issued guidance on post-travel quarantine.  The guidance identifies states that have “high amounts of COVID-19 cases.”  It recommends – not requires – that individuals quarantine for 14 days upon returning from one of those states.  Navigating this requirement complicates public employers’ lives even more – as employees travel for family vacations throughout the summer.  

Employers will first need to determine if they will make the travel-related quarantine recommendation mandatory for employees.  Either way, the employer will want to provide clear guidance to employees.  Keep in mind that some employees may be able to work remotely during the recommended quarantine period, and may be directed to do so.  Only when the employee cannot work remotely will the employer need to make a judgment call that balances the best interest of its workforce with its need to provide its services efficient and effectively.  Consideration should be given as to what leave will be utilized if an employee is directed to quarantine.

Managing a workforce has never been more challenging for public sector employers.  That is not likely to change any time soon.  Employers will need to assess and adjust to changing dynamics, orders, guidance, and recommendations.  Public sector employers should adopt appropriate policies and procedures to implement some or all of the best practices outlined above.  In adopting such policies and procedures, careful thought should also be given to any bargaining obligations the employer may have with respect to labor organizations representing employees.

This article originally appeared in the August 6, 2020 edition of The Legal Intelligencer. 

© 2020 McNees Wallace & Nurick LLC
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