Pub. 2 2020 Issue 4

M A Y / J U N E 2 0 2 0 24 nebraska cpas return. In the event the employee fails to return to work by this date, employers may consider this a voluntary resignation of employment. What if an employee says he or she is not ready to come back to work because the employee is comfortable remaining off work and receiving unemployment compensation? If an employee indicates a desire to remain off work in order to continue receiving unemployment benefits because it is financially more lucrative for the employee than returning to work and there is no other COVID-19-related reason to justify the employee’s continued absence, the employee should be provided a definitive return-to-work date and advised that the employer has an obligation to notify the local department of labor as to the reinstatement offer so a determination as to continued eligibility for unemployment compensation benefits can be made based on complete information. Should we take our employees’ temperatures? If so, under what circumstances? The CDC has advised that critical infrastructure workers who have been exposed to COVID-19 should have their temperatures checked daily before beginning work for a period of at least 14 days since their last exposure, among other precautionary steps. What constitutes a critical infrastructure worker varies by state; however, the Department of Homeland Security has issued the guidance to assist employers in identifying critical infrastructure workforces. (See https://www.cisa.gov/identifying-critical-infrastructure- during-covid-19.) Koley Jessen has also produced a resource to help employers identify critical infrastructure workforces and essential businesses. (See https://www.koleyjessen.com/media/ publication/56_Stay%20At%20Home%20States.pdf.) While the CDC’s guidance was issued for critical infrastructure workers (e.g., law enforcement and first responders), the same approach could be applied to employees in other industries in certain circumstances. Employers should determine whether an employee’s physical presence is necessary for this 14-day period after the employee has been exposed to COVID-19. However, employers should not rely on temperature checks as the sole means of preventing COVID-19 infections, as not every individual positive for COVID-19 has a temperature. (See https://www. cdc.gov/coronavirus/2019-ncov/community/critical-workers/ implementing-safety-practices.html.) If employers decide to take employees’ temperatures, employers must determine who will be responsible for administering the temperature checks, including ensuring that this person has sufficient training and the proper equipment, including PPE, to accurately and effectively conduct the check. Under the Americans with Disabilities Act (ADA), taking an employee’s temperature is considered a medical inquiry that can only be done if it is job-related and consistent with business necessity. In response to the COVID-19 pandemic, the Equal Employment Opportunity Commission (EEOC) issued guidance stating that temperature checks do not violate the ADA under the current circumstances. However, it is critical for employers to understand that the EEOC’s guidance is not indefinite and employers should continually confirm that the guidance remains in effect and its actions remain consistent with the guidance as this pandemic unfolds. The EEOC’s guidance regarding temperature checks under the ADA can be found at https://www.eeoc.gov/ facts/pandemic_flu.html. Can we require employees to be tested for COVID-19? On April 23, 2020, the EEOC issued guidance stating that employers may require employees to undergo testing for COVID-19 as a condition of returning to work. The ADA requires that any mandatory medical test of employees be “job related and consistent with business necessity.” Applying this standard to the current circumstances of the COVID-19 pandemic, employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. Therefore, an employer may require employees undergo COVID-19 testing before they enter the workplace to determine if they have the virus. Consistent with the ADA standard articulated above, employers should ensure that the tests are accurate and reliable. For example, employers may review guidance from the U.S. Food and Drug Administration (FDA) about what may or may not be considered safe and accurate testing, as well as guidance from CDC or other public health authorities. (See the FDA’s FAQs at https://www.fda.gov/medical-devices/ emergency-situations-medical-devices/faqs-testing-sars-cov-2.) An employer’s ability to require employees to be tested for the COVID-19 virus or the antibodies to COVID-19 will also depend on whether sufficient testing capacity exists in the employer’s community. To the extent tests are available, employers must consider issues related to administering the tests, paying for the tests, and checking test results. (See https://www.cdc.gov/ coronavirus/2019-ncov/symptoms-testing/testing.html.) If we are hiring, can we screen applicants for symptoms of COVID-19? Yes. An employer may screen job applicants for symptoms of COVID-19 aftermaking a conditional joboffer, as long as such screens are applied to all applicants for the same type of job. This ADA rule allowing post-offer (but not pre-offer) medical inquiries and exams applies to all applicants, whether or not the applicant has, or appears to have, COVID-19 or any other disability. Can we delay the start date of an applicant who has COVID-19 or symptoms associated with it? Yes. According to current CDC guidance, an individual who has COVID-19 or symptoms associated with it should not be in the workplace. The CDC has issued guidance applicable to all workplaces generally, but also has issuedmore specific guidance for particular types of workplaces (e.g., critical infrastructure workers). Guidance from public health authorities is likely to change as the COVID-19 pandemic evolves; therefore, employers should continue to follow the most current information on maintaining workplace safety. (See https://www.osha.gov/SLTC/covid-19/additional_ resources.html and https://www.cdc.gov/coronavirus/2019-ncov/ community/general-business-faq.html.) Can we withdraw a job offer if we need the applicant to start immediately but the individual has COVID-19 or symptoms of it? Based on current CDC guidance, an applicant who has COVID-19 or is exhibiting symptoms of COVID-19 cannot safely enter the workplace, and therefore the employer may withdraw the job offer. Can we withdraw an accepted job offer if we determine our business needs have now changed and we no longer need the individual’s services? Before summarily withdrawing an accepted offer, the facts and circumstances surrounding the offer should be carefully