EEOC Issues COVID-19 Update!

In July 2022, the EEOC issued another COVID-19 update. (You can find it here.) Although the update is not groundbreaking, the highlights are worth noting:

This is probably the most notable change contained in the update.
- Prior EEOC Guidance indicated that mandatory workplace COVID-19 testing always met the ADA “job related and consistent with business necessity” standard. The new Guidance changes that: now, an employer can require a COVID-19 viral test when deciding whether an employee or applicant is safe to be in the workplace only if the employer can show that the viral test is “job-related and consistent with business necessity.”
- Generally, viral test requirements will meet this standard if they are consistent with current guidance from the CDC, the Food and Drug Administration, or “state and local public health authorities.” Other justifications for requiring a viral test include the level of community transmission, the vaccination status of employees, the accuracy and speed of processing for different types of COVID-19 viral tests, the degree to which breakthrough infections are possible for employees who are “up to date” on vaccinations, the ease of transmissibility of the current variant(s), the possible severity of illness from the current variant, what types of contacts employees may have with others in the workplace or elsewhere that they are required to work (e.g., working with medically vulnerable individuals), and the potential impact on operations if an employee enters the workplace with COVID-19.
- As with most issues we discuss, it is going to be important that you document the process of requiring the viral test and the information (CDC, FDA, etc..) that you relied upon in doing so.

Continue reading →

The CDC Re-Defines “Close Contact”

Under the old Guidance, Close Contact was someone who had been within 6 feet of a COVID-19 positive person for 15 minutes or more.

Under the new Guidance, Close Contact is “Someone who was within 6 feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period starting from 2 days before illness onset (or, for asymptomatic patients, 2 days prior to test specimen collection) until the time the patient is isolated.”

On Wednesday, the CDC issued a new Guidance that expands the definition of “close contact” for purposes of exposure to COVID-19.

As you probably recall, the CDC has generally recommended that anyone having Close Contact with a COVID-19 positive individual stay home for fourteen (14) days after their last contact with the COVID-19 positive person.

I do not know what practical impact this new Guidance will have on the average person going about their daily business; I suspect not much. However, this expansion may significantly impact the application of Act 336. You will recall from my prior updates that Act 336 limits liability for civil damages for injury or death resulting from exposure to COVID-19: “…unless the person, government, or political subdivision failed to substantially comply with the applicable COVID-19 procedures established by the federal, state or local agency which governs the business operations and the injury or death was caused by the person’s, government’s, or political subdivision’s gross negligence or wanton or reckless misconduct.”

Although we don’t yet have any reported cases interpreting this aspect of the Act, it is almost certain that the new CDC Guidance will constitute a “procedure established by a federal agency” with which we must comply in order to enjoy the protections of Act 336. As you can see, this Guidance will significantly expand the scope of employees that you send home to self-quarantine for 14 days after exposure to COVID-19.

The CDC has not established procedures for tracking an employees’ cumulative exposure to COVID-19 over a 24-hour period. As an HR professional, I would alter both my written policies and my practices to incorporate this new. Showing that you made a good faith effort to comply with the Guidance may be a critical piece of evidence one day.

New York Court Vacates Four Provisions of the FFCRA Final Rule

Earlier this week a federal court in New York vacated four key provisions of the U.S. DOL’s Final Rule implementing the Families First Coronavirus Response Act. In April, the State of New York sued the DOL claiming that the DOL had exceeded its statutory authority in a way that denied FFCRA leave to eligible employees. The District Court largely agreed with the state of New York and vacated four provisions of the DOL’s Final Rule. Specifically, the Court vacated the provisions:

That employees are only eligible for paid FFCRA leave where the employer had work available (This opens the door for furloughed and laid-off employees to make claims for FFCRA paid leave); This could be huge.
Defining healthcare providers that can be declared exempt from the protections of the FFCRA. (This would eliminate a health care provider’s ability to exempt it’s employees from the FFCRA.);
That employees may only take intermittent leave for certain reasons if their employer consents. (This would allow employees to take intermittent leave to care for a child without employer permission.); and
That employees must provide documentation before taking FFCRA leave. (Employers would still be able to require documentation, just not before the employee began leave.)

Before you start pulling your hair out, we do not know if or how this ruling will impact those of us blessed to live and work in the Fifth Circuit. This ruling was issued by the United States District Court for the Southern District of New York. Rulings of this Court will ordinarily not be binding on the Federal Courts of Louisiana. However, we can expect similar suits to be filed in other jurisdictions. Of course, if you employ employees in the jurisdiction of the Southern District of New York, this ruling will be controlling if it stands. It is very likely that the DOL will either appeal this judgment on you or amend its Final Rule in such a way to make it compliant with this ruling. In the meantime, employers should make themselves familiar with this ruling and determine what, if any, steps they should take. You can read the opinion here: https://www.fmlainsights.com/wp content/uploads/sites/813/2020/08/State-of-NY-v.-USDOL.pdf I will track the progress of this case through the inevitable appeals process and keep you informed. As always, call me if you have any questions.