Can I Test Employees for COVID? And Do I Really Want an EEOC Charge???

Good afternoon!

How is everyone surviving the continued, life-altering COVID-19 crisis?  If you’re in North Carolina, you’re in the 3rd most strict state, according to one study, with regard to continued lock-down status. ☹ It seems the small businesses are taking the hardest hit and that’s a shame, since we bear a significant share of the overall tax burden that supports our federal and state governments and represent more than “half of Americans [who] either own or work for a small business.”  Additionally, we “create about two out of every three new jobs in the U.S. each year.”1  I am, with a spirit of rebellion, wearing my mask everywhere, as mandated; and wondering if and when life will ever be “normal” again.

With essential businesses continuing to operate and others allowed to resume full or partial operations, new questions are arising.  With this Brief, I want to address the sensitive issue of what to do when one of your employees tests positive for COVID-19.

In some cases, the employee goes to be tested after learning of exposure to another person; or the employee may be experiencing symptoms.  Hopefully, the employee is inclined to immediately go to your HR person, or to you, and disclose that he/she has received a test result that is positive; or you may receive a call from the local Health Department.  This information is highly confidential!  You have the option of asking for a signed release (attached) to disclose his/her name to colleagues working in close proximity to them on a regular basis, otherwise, you must keep the name confidential.  And no hints!  You would need to have the infected person write down every person with whom he/she has been in contact in your workplace.  (This is a must.)  The employee should be sent home immediately to self-quarantine, following the CDC guidelines or their Healthcare provider.

At that time, Management must step into action immediately!  Remember my prior HR Brief dated June 1, on the OSHA guidelines that must be followed, and the liability employers now assume with the Pandemic, so responding appropriately and in full conformance with these guidelines is extremely important.

At this point, I would suggest meeting with your entire workforce, to determine if the infected person could have been in their vicinity–perhaps a break room, rest room, time clock – in addition to their workspace.  Ideally, only the departmental area where the person worked is impacted.  In meeting with the likely impacted departmental group, you will need to inform them that the Company has had a confirmed positive case.

  1. Review with employees the guidelines for everyone to protect themselves–they should be wearing a mask if within six feet of one another, washing their hands often, and if applicable, disinfecting their work area periodically as instructed.
  2. Be sure to remind all employees of the Company’s efforts thus far to keep them safe–all the measures taken by the Company (e.g., plexiglass dividers, providing masks, increased ventilation, sanitation measures, etc.).
  3. Remind them of COVID-19 symptoms, and to alert HR/Management if anyone begins to have any symptoms or has any concerns.

Afterwards, there are several additional steps that are critical to follow.  I’m attaching a Legal Alert by Fisher Philips Attorneys that outlines seven steps. By adhering to these steps, you not only protect your folks, you also reduce the risk/liability to your Company.  And of course, be diligent to maintain documentation as you move through each step.   Please let me know if you have any questions, or if I can be of assistance.

Additionally, the question of employers providing for testing employees has come up in past days.   Ogletree Deakins’ website provides an informative article here.  In short, the employer can provide its own testing to certain employees, such as: those showing symptoms or who were exposed, those who cannot social distance in the workplace, or to insure fit-for-duty to return to work.  I would be very cautious, however, in making testing a blanket policy in which ALL employees must take a COVID-19 test.  Testing all employees may indeed be warranted, but be certain that you have justification for doing so–and then consider running it by your Employment Attorney prior to proceeding with testing, as it may violate ADA.

The CDC’s guidelines have been revised for isolation/quarantine measures.  You can find those here.  And there is now debate as to how long an infected person will test positive after symptoms disappear, and whether the person remains contagious.  This presents a huge dilemma for employers, and one that will demand your frontline Management to enforce the COVID protocols you’ve put in place.  I have a compilation of information from the CDC.gov site, if you’re interested.

Finally, on another note…as our environment continues to heat up regarding Politics, “Cancel Culture”, BLM, etc., a caution to any one in Management if you’re on Social Media!  I learned yesterday from Sabrina Presnell Rockoff, Esq. of an EEOC charge filed against a company resulting from a post on social media by one of their Supervisors.  Apparently, this Supervisor had candidly expressed his views in such a way in a FaceBook post that when his employee read it, the employee was left with the perception that the manager felt a certain way about him (the employee).  This resulted in the employee filing an EEOC Claim against the company.

My point:  Every company, no matter its size, needs to provide specific training, including EEOC-related training, to its leaders!     In a recent SHRM survey, 57% of employees think their leaders could improve in how they manage their people, while half were of the opinion that their own work performance would improve if their supervisor had better supervisory skills.  Of the top areas needing improvement in their managers, employees cited “communication” (41%); team training and developing (38%); “time management, delegation, and prioritizing” (37%); “managing team performance” (35%); and “cultivating a positive and inclusive team culture” (35%).2

Although this Claim may end up having no substance, there are two considerations.  The EEOC requires a response from the company regardless.  It’s called a Position Statement.  This typically requires an Employment Attorney, at least to review and critique it—if you’re smart.  Your required response can cost in excess of $5,000.00.  That’s just to respond to the Claim!  And even if the Claim is deemed as having no basis by the EEOC, the employee has a certain amount of time to take the matter to Civil Court and sue you there!  Do you see the dollar signs racking up???  $$$$  And that’s if the charge has no basis!

If it is determined to be a viable Claim, and the EEOC wants to proceed, there will be much more involved of course, and depending on its outcome, you may be faced with Fines, penalties, etc.

With this in view, taking the time to train your leaders makes good sense in light of the nominal cost of training — it amounts to a lot of wisdom in the long run.   Your leaders need to understand the power they hold and the influence that comes with that power.  They also need to understand the liability that their actions and words can have on your business. There are places you can send your leadership team for various training courses/seminars, or you can discuss with me the option of having me customize training to suit your specific operation and conduct targeted training session(s) on your site with your team.  (In groups of 10 or less, masked, and social distanced—of course.  😊)

I hope you’ve found this information helpful.  If so, I’d like to know.  Feel free to send me your questions and topics for future HR Briefs.  Also, I’d appreciate your thoughts on any topic of interest you might have in orchestrating periodic lunch-n-learns with me in the future.

Much appreciation to those who have allowed me to be of service to your organization recently!  I look forward to future opportunities to provide timely and informed solutions for your HR needs!

DISCLAIMER:  The contents of this email is for informational purposes only and is confidential and intended for the recipient specified.  It is not legal advice and should not be taken as such.  You should contact your employment attorney to obtain legal advice with respect to any HR problem or issue.

1Small Businesses and Their Income Tax Burden, by Kyle Pomerleau, May 5, 2015, https://taxfoundation.org/small-businesses-and-their-income-tax-burden/

2SHRM Survey:  Workers Think Managers Need More Training, by Dana Wilkie, August 18, 2020.

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