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COVID-19 and The High Risk Employee

With businesses reopening thanks to modifications of state stay at home orders, employers are beginning to contemplate what their new work environments will look like when employees return. Over the past several months, the Equal Employment Opportunity Commission (‘EEOC”) has provided guidance to employers regarding the ways that a company can safeguard its workplace in this new era of COVID-19. One hot question is whether employers, out of fear of legal liability from possible COVID-19 workplace exposure, can prevent high risk employees who suffer the greatest possible complications from COVID-19 from returning to work merely because of that possibility of greater harm. The EEOC says no, at least not automatically, just because of that high risk of possible complications.

According to the EEOC, employers cannot bar high risk employees from returning to work merely because of that high risk. Rather, before an employer can take such action, the employer must engage in the traditional interactive process required under the Americans with Disabilities Act (“ADA’) any time an employee with a disability needs a workplace accommodation. Since high risk employees have one or more underlying medical conditions that cause them to be high risk, the EEOC directs that employers engage in the interactive process to determine whether there are ways of minimizing that employee’s exposure to COVID-19 in the workplace. As part of that interactive process, the employer can assess whether the employee would pose a direct risk of harm to either themselves or others, but in making that assessment, there must be actual objective proof of possible harm.

Under this standard, a direct threat assessment cannot be based solely on an underlying condition being on the Center for Disease Control’s list of high risk factors. Rather, the determination must be an individualized assessment based on a reasonable medical judgment about a particular employee’s disability – not the disability in general – using the most current medical knowledge and/or on the best available objective evidence. The ADA regulations require an employer to consider the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm. According to the EEOC, assessment of these factors should also include considerations based on the severity of the pandemic in a particular area and the employee’s own health (for example, is the employee’s disability well-controlled), and his/her particular job duties. A determination of direct threat also should include an analysis of the likelihood that an individual will be exposed to the virus at the worksite. Measures that an employer may be taking in general to protect all workers, such as mandatory social distancing or the wearing of face masks and gloves, also would be relevant in determining the possibility of a direct threat of harm. Thus, according to the EEOC, ultimately an employer may only bar an employee from the workplace only if, after going through all the foregoing steps, the facts support the conclusion that the employee poses a significant risk of substantial harm to himself/herself that cannot be reduced or eliminated by reasonable accommodation.

In light of this EEOC directive, employers should not rush to judgment in deciding to bar a high risk employee from returning to the workplace due to COVID-19. Adherence to the traditional interactive process required by the ADA will enable an employer to navigate through this complicated issue and reduce the chances of significant legal harm arising from the mishandling of such fears during this continuingly evolving pandemic.

 


Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.

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NJ Supreme Court Order Extending and Tolling Court Deadlines Due to COVID-19 Pandemic

On Friday, March 27, 2020, the New Jersey Supreme Court issued an omnibus order addressing the suspension of court proceedings, extension of deadlines and tolling time periods (including the time to file Notices of Tort Claims). The Court had been issuing almost daily orders but this order addressed the extension of those time periods based upon the current restrictions on movement and activity recommended by NJ DOH and CDC, as well as the Governor’s Order 107. The major effect of this order is to continue the stay of all jury trials, restart arbitration hearings on a virtual basis on April 27, 2020, require depositions to be conducted on a virtual basis, extend discovery deadlines for 6 weeks from March 16, 2020 to April 26, 2020, and toll the statute of limitations during this 6 week time period as well.

Per this Order, the Court placed into effect and/or renewed the following provision:

  • No new civil jury trials will be conducted until further notice.
  • Time for completion of discovery and time for filing motions for summary judgment are relaxed to permit the extension of discovery deadlines through April 26, 2020.
  • Time for issuance of summons is extended from 15 days to within 60 days of the Track Assignment Notice for notices issued from March 16 through April 26, 2020.
  • Time frame for service of valid and timely Notices of Tort Claim will be tolled from March 16 through April 26, 2020.
  • Time periods for discovery (including interrogatories, inspection of documents and property, IMEs, and requests for admission) will be extended from March 16 through April 26, 2020.
  • In computation of time for discovery end dates, the period of March 16 through April 26, 2020 shall be excluded due to exceptional circumstances.
  • Special Civil Part and Small Claims trial calendars are suspended through April 26, 2020.
  • The requirement to submit courtesy copies of motion papers, not exceeding 35 pages, to the trial court judge is suspended.
  • Civil arbitrations scheduled from March 16 to April 26, 2020 have or will be postponed and rescheduled.
  • Effective April 27, 2020, Civil Arbitrations will resume with participation in any session to be via video and/or telephone conference and initiated by an arbitrator or panelist.
  • The arbitration rules are relaxed to permit an extension of timeframes and authorize arbitration hearings to be conducted in a location other than the courthouse.
  • Through April 26, 2020, depositions should be conducted remotely using necessary and available video technology and court reporters may administer and accept oaths remotely.
  • To the extent practicable, all court matters including hearings, conferences, and arguments will be conducted by video or phone conferencing and in-person appearances will be permitted only in emergent situations.
  • All depositions and appearances for any doctors, nurses, or healthcare professionals involved in responding to the COVID-19 public health emergency are suspended through April 26, 2020 unless requested by the health profession or that are for matters related to COVID-19.
  • For computation of time periods under the Rules of Court and under any statute of limitations for matters in all courts, for purposes of filing deadlines, the additional time of March 28 through April 26, 2020 shall be deemed the same as a legal holiday. (The Court previously designated the time period of March 16, 2020 to March 27, 2020 to constitute a legal holiday.)
  • Electronic signatures are now permitted on all original filings temporarily during this crisis.

 

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COVID-19: What Can An Employer Do?

As many businesses are temporarily shutting down due to Governor Murphy’s closure order here in New Jersey, what can those other employers do who remain open to help safeguard against COVID-19 infestation of its workplace. Well, the answer might surprise you thanks to a recent guidance from the Equal Employment Opportunity Commission (“EEOC”).

Under this EEOC Guidance document on the ADA and the COVID-19 virus, several measures are outlined that employers can use to protect its workplace. Along with stressing the need to follow good hygiene practices as recommended by the CDC, ADA-covered employers during a pandemic like ours may additionally ask employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat. Employers must however maintain all information about employee illness as a confidential medical record in compliance with the ADA. Also, while generally measuring an employee’s body temperature is a medical examination, because the CDC and state/local health authorities have acknowledged community spread of COVID-19, and issued attendant precautions, employers may also measure employees’ body temperature without running afoul of any legal requirements. (However, note of caution: be aware that some people with COVID-19 do not have a fever.) Finally, you can also direct persons with symptoms of the virus to go home and leave work or just stay at home if they have any sickness at all.  The CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace. Significantly, the ADA does not interfere with employers following this advice, and many of my employer clients are regularly telling employees this to get that message out about staying home.

So, you can certainly be proactive in guarding your workplace consistent with the above guidelines. And given the serious public health crisis that now exists, I suspect even the New Jersey Department of Labor will have no issue with employers who follow this ADA guidance, so long as confidentiality is preserved relating to the receipt of employee medical information.

Please everyone out there be careful and stay safe during these trying times.  We will collectively get through this together if we just act smart and do all that can be done to keep our workplaces safe when continuing to operate.