Managing paid leave programs has always been a complex task for employers who want to do the right thing for their employees, and at the same time, stay compliant. However, as many employers continue to grapple with the economic fallout of the pandemic, keeping up with the Families First Coronavirus Response Act (FFCRA) and its latest developments has been daunting. To help navigate the FFCRA, Guardian Life hosted a webinar to address questions that brokers, HR administrators and employers have about the guidance issued by the Equal Employment Opportunity Commission (EEOC) related to COVID-19.

With return-to-work being top of mind for many employers, Guardian polled attendees by asking about what their top business priorities were today. It's no surprise that 67% responded saying "implementing safety measures for employees" was the top priority. As employers begin to roll out their return-to-work strategy, they should continue to follow the best available medical advice as well as guidance from the Centers for Disease Control related to keeping employees safe in the workplace during and after the COVID-19 pandemic. As employees return to work, the EEOC has approved the following measures that employers may take to ensure a safe workplace.

Listed below are some key takeaways that brokers, consultants and HR administrators should keep top of mind to ensure a safe workplace:

1. Taking employees' temperatures is OK. Employers may take employees' body temperatures as a method of trying to prevent further spread of the virus. Employers can also make disability related inquiries and conduct medical examinations if they are job related and consistent with business necessity. They can also require the use of safety equipment and mandate social distancing in the workplace.

2. Delaying or withdrawing job offers due to COVID-19 symptoms is acceptable. An employer may delay the start date of an applicant who has been diagnosed with COVID-19 or has COVID-19 symptoms. Keep in mind that this does not allow employers to discriminate against candidates who may be more susceptible to the virus like individuals over the age of 65 or pregnant women.

3. Reasonable accommodations are still required. The EEOC clarifies that employers may not ignore requests for reasonable accommodations from individuals with a disability during the COVID-19 pandemic. This includes individuals who have preexisting conditions that make them more vulnerable to the virus. Employers may also shorten or eliminate the exchange of documentation that takes place during the interactive process.

4. Employers may need to be creative when requiring fitness for duty certifications. According to the EEOC, the ADA permits employers to require a note from a health care provider certifying that an employee who had COVID-19 or its symptoms is fit to return to work. They acknowledge that the overburdening of hospitals and health care facilities make it more difficult to obtain medical certifications, so they advise flexibility in the documentation that's required.

5. Keep employee-specific medical information confidential. Most employers know that they must keep medical information about a particular employee separate from the employee's personnel file. This is going to be even more important with COVID-19, as situations in the workplace may make it more difficult to maintain privacy when it comes to the COVID-19 diagnosis in the workplace. Employers will need to take extra measures to ensure documentation and COVID-19 related conversations are confidential in order to maintain an employees' privacy.

6. An employer may not be required to provide a reasonable accommodation if they can demonstrate that it will create an "undue hardship." In denying the accommodation request, the employer will have to demonstrate that it will create "significant difficulty or expense." For example, a request for accommodation that an employer provided in the past may be more difficult to provide because of COVID-19 in terms of cost and feasibility.

James Venable is vice president of employment law, absence, and accommodation compliance at Reed Group, a wholly owned subsidiary of The Guardian Life Insurance Company of America®. James regularly blogs about the impact of legislation and guidance from regulators regarding absence management.

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COVID-19 and navigating EEOC guidance

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