COVID-19 Labor and Employment Teleforum Series #1

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Employers are increasingly being faced with difficult issues with respect to COVID-19, including challenging labor and employment issues. Various federal and state statutes present compliance issues for employers, particularly given the recent enactment of the First Families Act and the CARES Act at the federal level. Existing federal statutes such as the National Labor Relations Act and Title VII of the Civil Rights Act also present labor and employment law challenges for employers. This three-part teleforum series will review federal and state labor and employment issues and options for employers to consider. Federalist Society Labor and Employment Executive Committee member, G. Roger King will be the speaker for this first teleforum. Mr. King is Senior Labor and Employment Counsel for the HR Policy Association and previously a Partner at the Jones Day law firm.

Featuring:

G. Roger King, Senior Labor and Employment Counsel, HR Policy Association

 

The slides to accompany this presentation are available here.

 

 

This call is open to the public - please dial 888-752-3232 to access the call.

Event Transcript

[Music]

 

Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's Practice Groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of Practice Group Teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Nick Marr:  Welcome all to The Federalist Society's Teleforum Conference call. This afternoon, or almost still morning, will be the first discussion in a series sponsored by the Labor and Employment Law Practice Group on "COVID-19 Labor and Employment Issues."

 

      My name is Nick Marr. I am Assistant Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the expert on today's call.

 

      And today, we're fortunate to have with us G. Roger King, who is Senior Labor and Employment Counsel at the HR Policy Association. After our speaker gives his opening remarks, we will then go to audience question and answer.

 

Thanks for sharing with us today, Roger. The floor is yours.  

 

G. Roger King:  Thanks, Nick. And good morning or good afternoon, depending on where you are in the country. I'm working from my home office in Boise, Idaho, this morning, a beautiful day here in Boise. I have not been back to my D.C. office since February. And like many of you, it's a very interesting time to get through our professional responsibilities from our home offices. But again, thanks for joining.

 

      I'm going to be presenting by myself this morning. My co-presenter, Tammy McCutchen, is not available to join us today. But what we have put together is a three-part series of COVID-19 labor and employment issues. And I'm sure many on the call today have faced questions from clients, friends, associates, association members, etc., regarding the labor and employment climate that we find ourselves in regarding COVID-19. So that's going to be the focus of our three-part series.

 

      And I've put together a slideshow that you can access. I'm going to be referencing it through my remarks this morning. If you go to fedsoc.org, click "Events" at the top of the page, and then scroll to "Upcoming Events," and then click today's event, the first event, July 15, and scroll to the bottom. You'll see slides "available here."

 

So, again, that's fedsoc.org. Click "Events," top of the page. Scroll to "Upcoming Events," today's event. Scroll to the bottom, and you will be able to click on "available here," the slides. So that's the background, and I will be referencing, as noted, the slides in my presentation.

 

      So let's talk about the climate we find ourselves in generally before we get into specific issues in this first part of our series. As you see on the slides, we have an outline of a variety of issues that we're going to be covering in this series. And this morning, we're going to be focusing on Romans I and II, Testing and Vulnerable Individual Issues, and Disability Concerns. And then we're going to be focusing on Employee Safety Issues, including the OSHA General Duty Clause.

 

      Those are the first two parts of this series that we're going to be focusing on in this teleforum. And then in subsequent teleforums in this series, we're going to move to the Fair Labor Standards Act, which Tammy will cover in large part. Then we're going to go to the National Labor Relations Act and Protected Concerted Activity, including social justice issues, strikes and walkouts, particularly, I think, timely given the scheduled events next week on the walkouts on July 20, at least the projected walkouts, and also on July 25, sponsored by a number of national unions.

 

      And after we conclude the National Labor Relations Act discussion, we're going to talk about issues of compliance with the WARN Act. We're also going to cover the First Families Act and the CARES Act, the two federal legislative initiatives with respect to COVID-19. We're going to cover then, briefly, Worker's Compensation Issues, which as you know, is primarily a state law issue. And then we're going to finally talk about litigation and state law developments. So that's the series outline. Our second part of the series will be on July 30, and the announcement will be on The Federalist Society webpage.

 

All right. Let's go to the next slide, and let's talk about the litigation climate we find ourselves in. As you'll see on the screen, if you're following me on my slides, we have a significant number of litigation initiatives around the country that are COVID-19 generated, at least in large part. And the Littler Mendelson law firm has an excellent tracking site, if you've not seen their website, regarding these developments.

 

And as noted, since roughly March 17, there have been over 300 lawsuits filed that have COVID labor and employment implications, including 41 class actions filed against employers. And these various lawsuits allege certain violations that touch upon virtually all federal and state labor and employment issues.

 

And not surprisingly, some of the so-called blue states, California particularly, we've seen very active litigation. In fact, California leads the list of cases filed with over 50. Florida also very active, 46 lawsuits reported to date on the Littler site. And 36 in New Jersey and 32 in New York.

 

Now, the types of complaints we're seeing, as you'll note on the slide, are retaliation. That is number one, not surprising. Worker safety, a close number two, and various discrimination suits, number three, and then wage and hour lawsuits, number four.

 

And the most prominent target employer-wise has been the healthcare industry. And there have been over 75 alleged violations committed by healthcare employers in the country. And again, I don't think particularly surprising given the frontline status that our hospitals have taken to respond to patient needs and the public safety needs.

 

So that's the climate we find ourselves in. It's an ever-evolving climate. As we'll note later in our series, congressional action is deemed considered to be the Senate of some type of liability shield for employers, given this increased litigation. In fact, we've already seen certain states enact protection for employers, certain types of liability shields, given this increased litigation. But we'll return to that as we conclude our series.

 

I'm going to go now to the next slide. And we're going to focus on the EEOC for a moment. And I thought it would be important to give our listeners a snapshot of where we are membership-wise regarding the Commission.

 

We have a relatively new Chair, Janet Dhillon. She's been doing just an excellent job. She's the Republican Chair of the Commission. Commissioner Becky Lipnic is still on the Commission even though her term has technically expired. But by the underlying statutes for the Commission, Commissioner Lipnic will continue to serve until Andrea Lucas, who is her nomination replacement, is either confirmed or rejected by the Senate.

 

And Ms. Lucas's nomination is pending before the Senate. She was reported out favorably by the Senate Health Committee. We're hopeful that Ms. Lucas will assume her Commissioner spot yet this month. We're hopeful the Senate will act on her nomination in July.

 

Charlotte Burrows is a Democrat member of the Commission. She's been serving for a period of time on the Commission. And then we have two other nominations pending. One, Keith Sonderling, who's presently at the United States Department of Labor, Wage and Hour Division, his nomination also pending Senate confirmation. He would assume one of the Republican positions on the Commission, a very knowledgeable attorney in the wage and hour area and in the labor and employment area.

 

And we also then have nomination pending for Jocelyn Samuels, a very bright professor of labor and employment law at the UCLA Law School. And she's been active in various government position, and she would assume a Democrat position on the Commission. So we'll see how this shakes out, given a crowded Senate calendar this month.

 

We also, as noted on the screen, have a relatively new General Counsel, [Sharon] Gustafson, who I've known for some time. She was a member of the Jones Day law firm, my previous law firm, and she's been quite active in the role of General Counsel.

 

So that's the background of the EEOC. And why is the Commission important? Well, I think, as perhaps everybody in this call is well aware, as you look at the next slide, the Commission has jurisdiction over a number of very important federal labor and employment statutes: the ADA, the Rehab Act, Title VII and Civil Rights Act, the Age Discrimination in Employment Act, and the Genetic Information Nondiscrimination Act. And all of those statutes come into play here as we talk about COVID-19 labor and employment issues. So the composition of the Commission and the direction it takes, the guidance it gives, and the activity of its General Counsel all are very relevant as we talk about COVID-19 issues.

 

So let's dive a bit deeper into exactly where the EEOC is on COVID-19 issues, and I've gone to my next slide, slide seven, Testing and Medical Examination Issues. The reaction that I'm picking up around the country from various employers and from members of the HR Policy Association where I work is that the guidance from the Commission has been generally helpful for employers and employees. It's been practically based and, of course, statutorily based.

 

And according to these guidelines, generally, employers can ask employees if they're experiencing symptoms of COVID-19. Now, important point there. All such information that you receive as an employer or as counsel for an employer must be treated as confidential medical information, confidential medical records, and separated from other parts of an employee's personnel file or have records that are retained for such workers.

 

But generally, Commission has given a green light for the employer to ask questions regarding medical symptoms and medical status. Further, Commission guidance permits generally an employer to require physician clearance certifying that an employee is fit for duty and does not have COVID-19 symptoms and can return to work or continue at the workplace. Again, a relatively wide path for employers regarding this area.

 

Next and most importantly, the guidance permits employers to administer tests before permitting an employee to enter the workplace. Now, when I use the word test, what's that mean? The predominant so-called testing is temperature testing that's taking place around the country. There are a number of variations of how that temperature test is taken.

 

There are other tests that have sprung up, and I'll get to the antibody testing here in a moment. But testing is generally permitted in this area by the Commission but for antibody testing. Further, the guidance permits the employer to disclose names of employees with COVID-19 symptoms or COVID-19 certified illness to public health agencies. And I want to stress that, to public health agencies. Again, confidentiality is important here, and the employer should not, as a general rule, disclose any medical information beyond public health agencies.

 

Now, the question keeps coming up, though, on contact tracing. And again, confidentiality is quite important here. And if I'm representing an employer, I am going to be very cautious regarding such information being released to any other source.

 

Next, the Commission permits, as mentioned, the employer to take temperatures and conduct other medical screening procedures. And again, this whole testing area, I think, really ties back to the question is the test job related, which I think in virtually every instance that we're talking about today, it would be. And is it consistent with business necessity? And again, I think the answer here is generally yes. Certainly, that's where the Commission has landed on that discussion. And we can certainly come back to that on the Q&A period as appropriate.

 

So also -- I'm now on my next slide, slide eight, pursuant to EEOC guidance, employers can delay the start date of new hires who have COVID-19 symptoms or withdraw offers of employment if COVID-19 has surfaced regarding the applicant. And you need to be careful, of course, there to make sure you have valid medical information and, again, consistent with business necessity.

 

Further, the Commission has stated that the employer has a general wide area of options regarding the requirement that employees wear PPE and engage in other infection control practices, again, consistent with employer's obligation to have a safe workplace. The Commission has given a green light, generally speaking, for employers to require appropriate and necessary safety equipment.

 

Further, the EEOC has indicated that there are certain things that employers should not be doing, and this is an important point to stress. You should not be stereotyping employees or applicants based on protected characteristics, including particularly national origin.  There have been instances reported to the EEOC, either employers or co-workers making negative remarks about individuals from Southeast Asia, particularly China, etc. I think it goes without saying that's a bedrock of our labor and employment jurisprudence in this country. We don’t discriminate on a basis of national origin.

 

Perhaps, a more difficult discussion for some employers has been screening out individuals over a certain age. The medical evidence, I think, to date is clear that individuals certainly 60 and over are more vulnerable to COVID-19 symptoms and illness. Further, individuals that have had either diabetes, heart conditions, cancer treatments can be particular vulnerable, their immune systems compromised, etc. But the Commission's been very clear, and this is consistent with prior case law, that employers should not be discriminating against individuals in a class basis, whether it be on age or national origin or other protected characteristics.

 

And as I mentioned previously, the Commission recently stated that employers cannot require employees or applicants to take antibody tests. And of course, the problem there is the antibody test has had a lot of problems being validated, a lot of false results, false negatives, false positives, unreliability. And further, we don't have any clear scientific evidence on immunity.

 

So what is the ultimate result, then, of testing for antibodies? Really, there's no practical evidence to date to support any meaningful use of such test data. So do be careful on that area. Perhaps we will see changes in that area as we have more scientific evidence coming out on antibody testing.

 

Let's move to the ADA just for a moment. It's certainly well-established, as everybody on this call that practices in this area knows, under the ADA, individuals with disabilities or at least perceived disabilities must be given an opportunity to have an interactive discussion with their employer or potential employer and a discussion leading to whether there is a reasonable accommodation that can be made without imposing an undue hardship on the employer for the individual to assume the work duties in question or continue such duties, perhaps, in an altered way, a reasonably accommodated way.

 

Well, those basic bedrock principles apply here. So if we have an individual that's compromised because of their age, perhaps, or their former illness or current illness, would it be a cancer situation, diabetic situation, it's my advice that the employer must have an interactive discussion on an individual basis with that applicant or worker or employee in an attempt to reach a reasonable accommodation to permit that individual to continue to work, whether it be working at home or work in an altered environment elsewhere or have altered work duties to minimize COVID-19 issues. And I know for some employers the initial reaction is that can be onerous, but that, indeed, is the law. The Commission, I believe, has been quite clear in that area.

 

So we have more than 70 COVID-19 related discrimination claims since the beginning of the pandemic. And a bit surprising to me here is that pregnancy discrimination claims have been particularly active. And I'm not exactly sure why that is. Again, it gets back to stereotyping. Clearly, not the right way to proceed, so do be careful in that area.

 

It's noted on slide nine, in a lawsuit recently filed in California, an employee alleged that her employer failed to reasonably accommodate her during the quarantine period, alleging she was terminated shortly after requesting accommodation because of her pregnant status. Now, that, again, is surprising to me. That simply is not a direction an employer should be proceeding. But again, these lawsuits are out there, so there must be some factual issue, at least, behind the allegation.

 

Similarly -- I'm moving now to slide ten. A similar suit was filed in New Jersey, again, a pregnancy-related issue. An allegation that she was terminated after she declined to work a shift that would require her to work directly with COVID-19 patients. Again, a reasonable accommodation discussion should've occurred there. I don’t have further facts on that case. But again, it's a type of allegation that we are seeing.

 

Moving to Texas, again, a pregnancy discrimination issue. The pregnant employee alleged that an employer discriminated against her on the base of her pregnancy. She alleged that she was only furloughed, not returned to work, only to be terminated because of her pregnancy status.

 

In Kentucky, another suit. There, employee alleged that the employer had discriminated on the basis of disability and have an issue that has arisen regarding the quarantine period and suspected exposure to COVID-19. Now, interesting in this case, the employee provided documentation of the doctor's quarantine order to the employer. And the employer allegedly said, "Why should I give you sick time?" And the employee was later terminated.

 

Again, a lack of common sense would appear to be a problem in some of these cases. But of course, as we all know as lawyers, without having all the facts before us, we can't make and should not be making judgment. So I only illustrate these cases to show you some of the type of litigation that is occurring in the discrimination area regarding COVID-19 issues.

 

Let's move to the United States Department of Labor and the Occupational Health and Safety Administration, OSHA. Of course, the main area of focus has been, and as it should be, the OSHA General Duty Clause. And that's a clause that is quite broad. But as we know, it essentially requires employers to have a safe working environment provided to employees and workers.

 

And that can mean many different things depending on the type of employer, the type of business in question, the types of potential exposure. And there has been a lot of discussion, including congressional hearings, about whether OSHA is doing its job at the federal level. And safety and health issues certainly generate a lot of concern, as they should. Sometimes, the emotional level can get quite high.

 

And the issue really has become should OSHA issue either emergency temporary standards or move toward a permanent standard or standards for infectious diseases in response to COVID-19? And the general approach of this administration has been one of flexibility and practicality. And I, frankly, applaud that. I understand the arguments on the other side, but to promulgate a rule in this area requires sound scientific evidence which we don't have in many cases, certainly the antibody areas we just mentioned.

 

The time that it takes to promulgate a standard can be quite prolonged. And furthermore, in certain instances, if equipment such as certain types of masks or clothing is not available, to impose a standard on an employer would be wholly unreasonable.

 

Now, that said, employers have a substantial obligation here in this area. There's no doubt about that, making every effort possible absent total undue hardship to furnish appropriate equipment, make reasonable accommodations, and provide a safe working place. So that tension, if you will, I know can be difficult. But again, the Department's approach, the OSHA Administration's approach here at the federal level of flexibility and practicality, I think, is quite important.

 

Now, I know various states have state OSHA laws. And some of those state OSHA administrators have taken a much more rigid approach. I'm not sure, however, the results have been any different, frankly, from the information we're getting. Even though you come in with a very stern approach, really, the ultimate result is what is important. Is the employer providing a safe working environment?

 

PPE considerations, of course, are paramount here, the different types of mask and locations and times that they must be worn. The most prevalent question we're getting is when social distancing of six feet or more or less, depending on the situation, cannot be achieved, what type of masking would be appropriate?

 

And that, of course, again, depends on the environment. A mask for a surgical nurse in a hospital is going to be much different, much more protection than a cloth mask that would be helpful, let's say, in a warehouse environment.

 

Work distancing policies are certainly important, as we all know. And an area that didn't receive previously, I think, enough attention is cleaning and infection control procedures. Put aside COVID-19. This is an area where employers should and could perhaps paid more attention to in the past, but they certainly are now. Limitations on use of cafeterias, elevators, etc., all necessary. And of course, then we also have considerations for visitors, vendors, independent contractors, and third parties.

 

My bottom line in this area is that every employer should have a comprehensive COVID-19 workplace safety program in place. It should be reduced to writing. It should be shared with employees, shared with regulators at state and federal level. It should be practically based. It should be based on CDC, another informed guidance, and, indeed, should be followed. And I think that type of approach will permit virtually all employers to face litigation, if it occurs, and also respond to third party inquiries, particularly from the regulatory community.

 

Let's go to the next slide. So OSHA has been under attack, as I mentioned. The AFL-CIO has filed a lawsuit in the U.S. Court of Appeals for the D.C. Circuit. And now, also to the resting approach, it's a request for a writ of mandamus, an extraordinary action by the court that would require USDOL OSHA to issue an emergency temporary standard for infectious diseases.

 

The three-judge panel that initially heard this case denied the request for the writ. And the AFL-CIO has filed a request for the full D.C. Circuit to hear the request en banc. As of this morning, at least Mountain Time, I've not seen an outcome regarding the en banc request. But I would follow that litigation closely. The AFL-CIO complaint is, I recall, thirty-something pages. It's quite detailed. It makes a very impassioned plea for OSHA to do more in this area.

 

But again, the question is what is practical? What's the bottom line here that will ensure worker safety, and is that being followed? And so we'll see how the court, if it indeed takes the case en banc, decides the case. As noted, the initial three-judge panel rejected the request for the extraordinary writ.

 

I'm at about the 12:30 mark Eastern Daylight Time. I just want to remind everyone that they can line up for questions.

 

Nick Marr:  Roger, we'll go for a bit longer, and then we'll get to questions. All right. I'll hand it back over to you, Roger.

 

G. Roger King:  Thanks, Nick. So as I mentioned, the AFL-CIO suit is technically still pending in the D.C. Circuit. And we will await the outcome of the court's ruling.

 

      Now, OSHA has recently issued additional guidance. And this guidance, you may have noted, focuses on face masks and other coverings at the workplace. And indeed, this is an important area, particularly for employers, whether it be airlines or warehouse operations or factory workers, that cannot constantly have a six feet distance requirement imposed.

 

      And the face mask issue, I know we've had certain people push back on it. But clearly, the evidence appears that face mask wearing can minimize exposure. And employers should be following this guidance from the OSHA administration. Now, again, this is not a rule. It's guidance. It's a recommendation. But again, back to practicality and flexibility and ultimate defense, employers would be well-advised to follow this guidance.

 

      Let's go to the next slide. So the CDC has been very active in this entire COVID-19 period regarding employer guidance. If you haven't gone to their website, I highly recommend it. Even though some have been critical of CDC, my take on this is they have done, under the circumstances, an excellent job. And they continue to improve, almost weekly, their guidance.

 

      So let's talk a bit about some of this guidance on that slide 13. The ventilation issue I mentioned previously, I cannot really stress that enough. Air circulation and ventilation, whether it be on an airliner or in a factory, etc., is something that all employers should certainly focus on. And the CDC has mentioned that and how that's operated. But during work time and non-work time, that can be quite significant.

 

      Whether it be seating, furniture, workspace, etc., of course, distancing of six feet of some type under that I think is standard approach, whether it be in a restaurant or a factory as appropriate. Signs, tape marks, other methods of measurement, I think, again, practicality here. Again, all of these measures ultimately provide, I believe, a buffer zone for employers to respond to criticism and all also potential litigation.

 

      Replace high touch communal areas, and this gets whether it be coffee pots, water coolers, prepackaged food, single serving items. Anything like that where there would be community touching or involvement should be reexamined and minimized.

 

      I like the next point: consider conducting daily in-person or virtual health checks. Some of our members at HR Policy have put together short training videos that they require all employees to watch before returning to work or continuing to work. But a constant reinforcement of the guidelines that we mentioned earlier over your checklist I think is quite important. And the CDC, of course, has stressed that. So it's important to do this on a reoccurring basis.

 

      And let me stop there for a moment on testing. Something I didn't mention earlier, I think an analogy here in testing is the substance abuse testing discussion we've had over the years for employers. Unless you're doing testing on a reoccurring basis, simply because somebody tested negative on day one doesn't mean they're going to be negative on day three or four. So as we move down this whole testing area of discussion, if you're going to get into testing, to be effective, it's going to have to be on an ongoing basis. And that can present practical and also expense concerns. So we'll see how that discussion plays out.

 

      Staying back with the CD -- or going back to the CDC guidance, clean and disinfect high touch areas. I would say that's common sense. Elevator occupancy and other communal areas and facial coverings, we've already touched upon that.

 

      Staying now at -- I'm at slide 14 with CDC. Obviously, you don't want sick people coming to work, I mean whether under COVID or any other illness. Just goes without saying. Employees who have symptoms should be sent home. And again, this gets to testing. If you're going to testing, for cost -- or what I label as for cost testing, I think is the way to go here. If we have a doctor's situation or if we have a self-report situation, there, we need to have a test or some type of follow up.

 

      Our next hazardous assessments, obviously necessary. You might want to bring in some specialists in this area to review your entire safety plan. Make sure your sick leave policies have been updated and are flexible and consistent with public health guidance. Also, if you are an employer that has 500 or fewer employees, you are totally in compliance with the First Families Act.

 

Further, we've talked about COVID-19 test results. Make sure they are valid. Make sure they've come from a reputable source and keep them confidential. They are employee specific.  Telework is obviously important, and of course, a routine cleaning goes without saying.

 

Workplace safety litigation, I'm at slide 15. Litigation regarding COVID-19 workplace safety, not surprising, has been increasing. One example is a recent lawsuit filed by five McDonald's employees alleging inadequate safety protocols at four franchisee locations in Chicago. There, the circuit court judge—this is a state level litigation—issued an injunction ordering the locations to adopt new safety measures. You might go to school on that case if you are faced with potential litigation.

 

In a different lawsuit, workers at a meatpacking plant -- and, again, of course, the meatpacking industries have a lot of issues of illnesses. These employees accused a company from failing to protect them from the virus. The judge there dismissed the lawsuit and focused on the fact that OSHA had primary jurisdiction of this area and that the court was not going to delve into that area, but OSHA would be the appropriate forum.

 

In Nevada, a lawsuit that's gotten a lot of national attention, the Culinary Workers Union filed a lawsuit against three Las Vegas casinos alleging that the casinos failed to shut down the food and beverage venues and immediately informed the employees of situations where employees had positive test results. And this lawsuit really revolves in part around face coverings also, an interpretation of the Collective Bargaining Agreement between the workers and the employers. But it yet is another example of how litigation can surface in this COVID-19 era in the safety issue environment.

 

I'm now at slide 16. States have started to enact liability shields. And some of these shields provide at least limited protection regarding COVID-19 issues, particularly given state law OSHA issues. States that have adopted at least partial liability shields, as noted on the slide, include Iowa, Kansas, Louisiana, Massachusetts, North Carolina, Oklahoma, and Wyoming. So if you practice in those states or have clients with operations in those states, you should certainly look to those laws.

 

About another dozen states are considering certain liability shields. So the states are really much more active right now than the federal government in the liability shield area. Although, Senate Majority Leader McConnell has stated if and when there's additional COVID-19 federal legislation, the liability shield issue is very important and will be prominent in his consideration of legislative initiatives.

 

Notably, protections do not extend to a variety of other employee-brought suits. And these are compensable time issues that we're going to get to in the next series on this issue under the Fair Labor Standards Act or state law are paid and unpaid leave issues, the pregnancy discrimination area, and teleworking issues. So stay tuned in those areas. We expect to see more activity, certainly, at the state level.

 

Nick, let me stop here. I'm happy to respond in the time remaining to any questions that our listeners may have on subjects covered today.

     

Nick Marr:  Great. And we'll go to the first question here, Roger.

 

Caller 1:  Hi. Great presentation. I'm hiring employees. They apply online, and I have to sift through and decide which of the hundreds of applicants I might want to further consider. Can I send out a short, like my doctor does, questionnaire asking, “Have you traveled overseas recently? Have you tested positive for COVID, etc.?” Can I ask such questions, send them out in writing to applicants?

 

G. Roger King:  I believe you can. I think we can make the argument based on the EEOC guidance that this is consistent with business necessity. It's important that you have a safe working environment and that co-workers not infect other workers and that you do have the ability under the EEOC guidance to screen appropriately here. So I think all those questions, assuming they're business necessity related and consistent with your overall approach for a safe working environment.

 

      Now, one caveat that you do this on a consistent, uniform basis, that you not select certain groups, target certain groups. But I don't hear you suggesting that whatsoever. I think that those types of questions that we are seeing as we enter retail food stores and other work environments are perfectly acceptable. And I think, in fact, I like your recommendation to do it online as a screening approach.

 

Caller 1:  Thanks ever so much.

 

Nick Marr:  It looks like we don't have any questions at the moment. Oh, we do have a question. We'll go to it now. Area code 703, the floor is yours.

 

Caller 2:  Roger, thank you very much. Great presentation. I want to give you a scenario and get your reaction. So a small business has been operating remotely, and now, they’ve said okay, it's time for us to totally reopen. We need to service our customers, so we're doing away with remote and everybody must show up in person. We'll do all the distancing, and we'll do all the CDC guidelines, but everyone must show up in person.

 

      Suppose you have an employee who says, "I'm just afraid to come back. And I don't want to come back, and I want you to accommodate me with continued online work." And the employer says, "No. We're not doing that anymore. Everyone must come back in person." What's your reaction to a scenario like that?

 

G. Roger King:  And this is a very real scenario. I know we were getting that type of question. Well, first, unless the employee has some type of COVID-19 medical issue, I think we rule that out. Second, we ask if they have any type of disability that would prohibit them from working. If they allegedly have such a disability, we have that interactive discussion and we talk about reasonable accommodation. But let's assume they don't have that.

 

      Then the next question is what is their reason or rationale for their fear factor, if you will? And unless they can provide a solid medical reason, I think the employer's on sound basis to no longer continue their employment.

 

      Now, let me footnote that. We have this issue of schools and childcare that keep cropping up and the opening or not reopening of schools, as the case may be. There may be a scenario where the employee could establish a situation on childcare basis. But even there, since schools are not in session at present, at least, in most parts of the country, I don't think that is going to be helpful for the employee.

 

      Now, the employee might also try to argue that someone in their household, under the Family Medical Leave Act, requires assistance. Maybe they might have a point there. But I think the base of your question, and please clarify if I've missed it, is that this employee is simply fearful of COVID-19, doesn't want to leave his or her home environment, and is refusing to return to work. And I think in that situation, a for-cause termination would be appropriate, and they would disqualify themselves, as a general rule, for both state and federal unemployment benefits. Do I read your question correctly?

 

Caller 2:  You read it exactly right. And, in fact, the employer that I have in mind is like a daycare type operation where they can no longer operate remotely because kids need to have in-person and teachers and all of that. So that's exactly what I'm talking about. And I think you nailed it.

 

G. Roger King:  Thank you. Nick, do we have any other questions in the queue?

 

Nick Marr:  We do. We'll go to the next one now.

 

Caller 3:  Yes, good morning. I guess two items, one merely administrative question, and that is you mentioned some slides that I was only able to listen in and I wasn't sure if perhaps the slides would be posted or available somehow with the podcast on the FedSoc website.

 

      And the second matter, just following up with the prior. I have heard discussions related to that where employers have been planning to use their existing disability processes to process somebody who has an ADA type claim or FMLA type claim, that sort of thing. What about the smaller employer that doesn't have documented processes to go through for that? Any guidance or recommendations for them?

 

G. Roger King:  Certainly. Let me take your questions in the order stated. If you go to fedsoc.org and click "Events" and scroll to "Upcoming Events," which would be July 15, today's events, and scroll to the bottom and you'll see "available here." If you click on that, all my slides are available. So you should be able to get to them yet today. And, Nick, I'm not sure, do the slides stay online for a period of time?

 

Nick Marr:  It will stay on, yes. You should be able to access.

 

G. Roger King:  So hopefully, you will not have any problem. If you do, simply send an email to my software to Nick, and we'll have an interactive discussion with you. We'll reasonably accommodate your request. And we'll make sure you have them.

 

Caller 3:  Thank you.

 

G. Roger King:  Now, to your second question, though. Even if the employer in question does not have a well-established disability leave or leave policy, the EEOC guidance would be where I would direct them. And I think it's quite helpful. Go online, the EEOC website.

 

But again, the bottom line here to me is a mix of practicality and jurisprudence. What is the problem? Let's discuss it. That's the interactive discussion requirement. How can we help you? How can we accommodate you so you can perform the job in a manner that's productive, safe, and consistent with our business necessity and requirements that we have as an ongoing operation?

 

And unless the accommodations that are being requested present an undue hardship, which is a very high standard, very difficult to meet, the employer should make every reasonable effort to try to accommodate the individual with the disability. And in this COVID-19 period, that might be working from home. But again, the applicant or the employee is going to have to show that she or he has some type of disability or reasonable basis for concern pursuant to the Q&A which is tied with the previous questioner.

 

So hopefully, that helps you. But I would strongly encourage the EEOC website materials and their guidance. Does that help you?

 

Caller 3:  Absolutely. Thanks so much.

 

G. Roger King:  Nick, do we have any other questions in the queue?

 

Nick Marr:  Not at the moment. To the last caller, if you're having trouble accessing the slideshows, feel free to email info@fed-soc.org, and we'll try to get back to you promptly.

 

      So we don't have any questions waiting right now, Roger. I guess I'll send it back to you if you'd like to give any closing remarks here as we're coming up on the hour.

 

G. Roger King:  I'll certainly be happy to. Thank you, Nick, and thank you everyone for dialing in this morning. Hopefully, this was helpful. The bottom line to me here is really three-fold. Continue to watch the litigation developments in the country in this area to see trends. Plaintiff's counsel, very reactive in this area, no doubt.

 

      And I think we all can go to school on what the litigation is showing as regarding pattern and practice or types of allegations. I am concerned about the pregnancy allegations. It just seems to me that we should've moved way beyond that area in this country, but apparently not in the litigation mode. The Littler Mendelson website that I mentioned is a good website to follow national litigation developments.

 

      Second, as previously discussed, the EEOC guidance is excellent. I would continue to watch the EEOC website and follow their guidance. It's been, I think, by and large very helpful and practical based on sound jurisprudence.

 

      Now, one footnote there. The EEOC has not made a determination that COVID-19 illness in and of itself is a disability. The Commission has certainly made a determination that it can pose a direct threat to an employee or an employer, but the Commission has not determined that the illness COVID-19 in and of itself is a disability. The Commission may yet reach that decision.

     

      But it is clear to me that COVID-19 can lead to other illnesses including, unfortunately, very severe illness that are disabilities whether it be diabetes, heart failure, lung congestion, etc. So stay tuned in that discussion, but follow the EEOC guidance.

 

      Finally, in the employee safety area, obviously, we're going to continue to watch what OSHA does by way of guidance. We're going to watch the AFL-CIO litigation in the Court of Appeals in D.C. And most importantly, we're going to follow the CDC guidance. And at the end of the day, an employer making every reasonable effort in my opinion, good faith effort, to follow CDC guidance and local and state guidance should have a very strong position to take if litigation is pursued against the employer.

 

      Our next, in this three-part series on COVID-19 Labor and Employment Issues, teleforum will be on July 30. We will do Fair Labor Standards Act issues primarily in that call. We may get to the National Labor Relations Act, protected concerted activity in that call. If not, we'll finish it off with our third in this series. It will be in early August.

 

      Nick, that's all I have to wrap up, unless there are any other questions. I believe we're complete for today.

 

Nick Marr:  Great. Thanks, Roger. And on behalf of The Federalist Society, I want to thank you for your valuable time and expertise today. And to all the people who dialed in today, we welcome listener feedback by email at info@fedsoc.org. And a reminder to keep an eye on your emails and the schedule listed on the FedSoc website for upcoming teleforums. And in fact, our next one will be held at this same number at 2:30 p.m. today. Arizona Solicitor General will join us for a Courthouse Steps Decision teleforum. So thank you all for joining us today. We are adjourned.

 

[Music]

 

Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.