Amanda Farahany and Todd Stanton of Stanton Law LLC have teamed up again to co-write the Daily Report commentary “To Test or Not to Test? What to Consider When Reopening During COVID-19” that was published May 12, 2020.
They noted that the decision about who to bring back to work could be more of a challenge for employers than the original decision about who to let go during the pandemic. “There's no playbook for reopening during a pandemic. As an employer, the legal risks are almost as concerning as the health risks.” They also pointed out that emergency updates to existing employment laws and regulations make advanced planning that much more important, and they suggested that employers focus on clear communications and keeping employees healthy is the best way to minimize potential legal headaches.
There were also suggestions in the piece about how to avoid discrimination issues, including having rehiring criteria in place and deciding who meets the criteria. They recommended objective criteria over subjective attributes for determining reliability and performance.
They further advised that employers should be flexible with employees, and that it's a good idea to offer teleworking as an option They cautioned that the Americans with Disabilities Act has not been amended for COVID-19, and “classic FMLA” still applies as it did before the pandemic. Employees with relevant health conditions may be better with a flexible shift, working from home or taking unpaid leave.
Though the Equal Employment Opportunity Commission is now allowing employers to test employees for COVID-19, implementing a testing process at your facility can help minimize the chance of future employee claims. Employers should be sure to pay for the tests and keep the results confidential.
To get more good information on bringing employees back you can read the article on the Daily Report's website. (Subscription required.)