The EEOC has provided elaboration on how employers can navigate between compliance with the Equal Employment Opportunity laws and COVID-19 protocols issued through myriad government orders. The following represents the EEOC’s response to certain of the most commonly posed questions from employers concerning their obligations solely under laws enforced by the EEOC (as opposed to, for example, laws enforced by the DOL such as FLSA), recognizing that this guidance may change over the course of time as the COVID-19 landscape evolves.

Scenario: An employee who must report to the workplace knows that a co-worker who reports to the same workplace has symptoms associated with COVID-19. Does Americans with Disabilities Act (“ADA”) confidentiality prevent the first employee from disclosing the co-worker’s symptoms to a supervisor? The answer is no; ADA confidentiality does not prevent this employee from communicating to his supervisor about a co-worker’s symptoms. In other words, it is not an ADA confidentiality violation for this employee to inform his supervisor about a co-worker’s symptoms. After learning about this situation, the supervisor should contact appropriate management officials to report this information and discuss next steps.

Scenario: An employer knows that an employee is teleworking because the person has COVID-19 or symptoms associated with the disease, and that he is in self-quarantine. May the employer tell staff that this particular employee is teleworking without saying why? The answer: yes. If staff need to know how to contact the employee, and that the employee is working even if not present in the workplace, then disclosure of this information without saying why the employee is teleworking is permissible. Also, if the employee was on leave rather than teleworking because he has COVID-19 or symptoms associated with the disease, or any other medical condition, then of course too an employer cannot disclose the reason for the leave, just the fact that the individual is on leave.

Scenario: Employers may be concerned that telling employees that “someone at this location” or “someone on the fourth floor” has COVID-19 may not provide sufficient information to allow people to know if they should take further steps to protect themselves or others. Therefore, can employers tell the workforce the name of the employee with COVID-19? The answer: no. The ADA does not permit such a broad disclosure of the medical condition of a specific employee. More importantly, this broad disclosure is not recommended by the CDC. The CDC specifically advises employers to maintain confidentiality of people with confirmed COVID-19.

Scenario: Many employees, including managers and supervisors, are now teleworking as a result of COVID-19. How are they supposed to keep medical information of employees confidential while working remotely? The ADA requirement that medical information be kept confidential includes a requirement that it be stored separately from regular personnel files. If a manager or supervisor receives medical information involving COVID-19, or any other medical information, while teleworking, and is able to follow an employer’s existing confidentiality protocols while working remotely, the supervisor has to do so. But to the extent that that is not feasible, the supervisor still must safeguard this information to the greatest extent possible until the supervisor can properly store it. This means that paper notepads, laptops, or other devices should not be left where others can see them. Similarly, documentation must not be stored electronically where others would have access. And in fact, a manager may even wish to use initials or another code to further ensure confidentiality of the name of an employee.

Question: Does the ADA permit employers to notify public health authorities if the employer learns an employee has COVID-19? The answer is yes. The ADA permits this notification to public health authorities because, as the EEOC explained in its updated Pandemic publication, COVID-19 at this time poses a direct threat both to individuals with the disease and those with they come into contact. By direct threat, the ADA means that an individual’s medical condition — in this case, COVID-19 — poses a significant risk of substantial harm to himself or others.

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Should you have any questions regarding this Alert, please contact the Garfunkel Wild attorney with whom you regularly work, or contact us at info@garfunkelwild.com.  

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The EEOC has provided elaboration on how employers can navigate between compliance with the Equal Employment Opportunity laws and COVID-19 protocols issued through myriad government orders. The following represents the EEOC’s response to certain of the most commonly posed questions from employers concerning their obligations solely under laws enforced by the EEOC (as opposed to, for example, laws enforced by the DOL such as FLSA), recognizing that this guidance may change over the course of time as the COVID-19 landscape evolves.

Question: The EEOC has explained in its updated 2020 EEOC Pandemic publication that at the present time, the COVID-19 pandemic permits an employer to take the temperature of employees who are coming into the workplace. Is there anything else an employer could do at the current time to determine if employees physically coming into the workplace have COVID-19 or symptoms associated with the disease?

Answer: As of March 27, 2020, employers may ask all employees who will be physically entering the workplace if they have COVID-19, or symptoms associated with COVID-19, or ask if they have been tested for COVID-19. Symptoms associated with COVID-19 include, for example, cough, sore throat, fever, chills, and shortness of breath. An employer may exclude those with COVID-19, or symptoms associated with COVID-19, from the workplace because, as EEOC has stated, their presence would pose a direct threat to health or safety. For those employees who are teleworking, however, they are not physically interacting with coworkers, and therefore the employer would generally not be permitted to ask these questions.

Question: What may an employer do under the ADA if an employee refuses to permit the employer to take his temperature, or refuses to answer questions about whether he has COVID-19, or symptoms associated with COVID-19, or has been tested for COVID-19?

Answer: Under the circumstances existing as of March 27, 2020, the ADA allows an employer to bar an employee from physical presence in the workplace if he refuses to answer questions about whether he has COVID-19, symptoms associated with COVID-19, or has been tested for COVID-19, as well as the ability to bar this employee’s presence if he refuses to have his temperature taken. To gain the cooperation of employees, however, employers may wish to ask the reasons for the employee’s refusal. The employer may be able to provide information or reassurance that they are taking these steps to ensure the safety of everyone in the workplace. Sometimes, employees are reluctant to provide medical information because they fear an employer may widely spread such personal medical information throughout the workplace.

Question: May a manager ask only one employee — as opposed to asking all employees — questions designed to determine if she has COVID-19, or require that this employee alone have her temperature taken?

Answer: If an employer wishes to ask only a particular employee to answer such questions, or to have her temperature taken, the ADA requires the employer to have a reasonable belief based on objective evidence that this person might have the disease. So, it is important for the employer to consider why it wishes to take these actions regarding this particular employee. For example, if an employer notices that an employee has a persistent, hacking cough, it could ask about the cough, whether the employee has been to a doctor, and whether the employee knows if she has or might have COVID-19. The reason these types of questions are permissible now is because this type of cough is one of the symptoms associated with COVID-19. On the other hand, if an employer notices that an employee seems distracted, then that would be an insufficient basis to ask whether the employee has COVID-19.

Question: May an employer ask an employee who is physically coming into the workplace whether they have family members who have COVID-19 or symptoms associated with COVID-19?

Answer: From a public health perspective, only asking an employee about his contact with family members unnecessarily limits the possible extent of an employee’s potential exposure to COVID-19. A better question from a public health and workforce management perspective is whether an individual has had contact with anyone who the employee knows has been diagnosed with COVID-19, or who may have symptoms associated with the disease. From EEOC’s perspective, this general question is more sound. The Genetic Information Nondiscrimination Act prohibits employers from asking employees medical questions about family members.

Question: Suppose a manager learns and confirms that an employee has CO-VID-19, or has symptoms associated with the disease. The manager knows she must report it but is worried about violating ADA confidentiality. What should she do?

Answer: The ADA requires that an employer keep all medical information about employees confidential, even if that information is not about a disability. Clearly, here, the information that an employee has symptoms of, or a diagnosis of, COVID-19, is medical information. But the fact that this is medical information does not prevent the manager from reporting to appropriate employer officials so that they can take actions consistent with guidance from the CDC and other public health authorities.

The question is really what information to report: is it the fact that an employee — unnamed — has symptoms of COVID-19, or a diagnosis, or is it the identity of that employee? The answer is that exactly who in the organization needs to know the identity of the employee will really depend on each workplace and why a specific official needs this information. Employers should make every effort to limit the number of people who get to know the name of the employee.

Certainly, a designated representative of the employer may interview the employee to get a list of people with whom the employee possibly had contact through the workplace, so that the employer can then take action to notify those who may have come into contact with the employee. However, this does not require disclosing the employee’s name. For small employers, of course, co-workers might be able to figure out who the employee is, but employers are still in that situation prohibited from confirming or revealing the employee’s identity. Also remember that all employer officials who are designated as needing to know the identity of an employee should be specifically instructed that they must maintain the confidentiality of this information. And in fact, employers may want to plan what supervisors and managers should do if this situation arises and determine in advance who will be responsible for receiving information and taking next steps.

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Should you have any questions regarding this Alert, please contact the Garfunkel Wild attorney with whom you regularly work, or contact us at info@garfunkelwild.com.  

Click Here to download the Legal Alert.

 

The EEOC has provided elaboration on how employers can navigate between compliance with the Equal Employment Opportunity laws and COVID-19 protocols issued through myriad government orders. The following represents the EEOC’s response to certain commonly posed questions from employers concerning their obligations solely under laws enforced by the EEOC (as opposed to, for example, laws enforced by the DOL such as FLSA), recognizing that this guidance may change over the course of time as the COVID-19 landscape evolves.

May an employer exclude from the workplace an employee who is 65 years old or older and who does not have COVID-19, or symptoms associated with this disease, solely because the CDC has identified this age group as being at a higher risk of severe illness if they contract COVID-19? The answer is no. The Age Discrimination in Employment Act prohibits employment discrimination against workers aged 40 and over. If the reason for an action is older age, over age 40, the law would not permit employers to bar older workers from the workplace, to require them to telework, or to place them on involuntary leave. One way to show that an action was based on age would be if the employer did not take similar actions against comparable workers who are under the age of 40.

Do the EEO laws require an employer to grant a request to telework from an employee who is 65 years old or older because the CDC says older people are more likely to experience severe symptoms if they get COVID-19? The answer, again, is no. if, however, an employer is allowing other comparable workers to telework, it should make sure it is not treating older workers differently based on their age.

What are an employer’s ADA obligations when an employee says that he has a disability that puts him at greater risk of severe illness if he contracts COVID-19, and therefore he asks for reasonable accommodation? The CDC has identified a number of medical conditions — including, for example, chronic lung disease and serious heart conditions — as potentially putting individuals at higher risk. Therefore, this should be treated as a request for reasonable accommodation, meaning it is a request for a change in the workplace due to a medical condition. Because the ADA would not require an accommodation where the employee has no disability, the employer may verify that the employee does have a disability, as well as verifying that the accommodation is needed because the particular disability may put the individual at higher risk. There could also be situations where accommodations are requested because a current disability is exacerbated by the current situation.

As added by the EEOC with respect to this question, the employer can verify the existence of the disability and discuss both why an accommodation is needed and the type of accommodation that would meet the employee’s health concerns. In either situation, and as with any requests for reasonable accommodation, an employer may also consider whether a reasonable accommodation would pose an undue hardship, meaning the employer may assess whether a specific form of accommodation would pose significant expense or significant difficulty. Given the demands placed on the healthcare system due to the COVID-19 crisis, employers seeking documentation from a health care provider to support the employee’s request should recognize that because of the health crisis many doctors may have difficulty responding quickly. There may be other ways to verify the existence of a disability. For example, a health insurance record or a prescription may document the existence of the disability. If the employer is waiting to receive documentation, it may want to provide the accommodation on a temporary basis. This could be particularly critical where the request is for telework or leave from an employee whose disability puts them at higher risk for COVID19 –from COVID-19.

What are an employer’s ADA obligations to provide reasonable accommodation if an employee says that he lives in the same household as someone who due to a disability is a greater risk of severe illness if he contracts COVID-19? The employee only has a right to reasonable accommodation for his own disability. In the situation being raised here, the employee does not have a disability, only a member of his household. The employer should consider, however, if it is treating the employee differently than other employees with a similar need before it responds to the request.

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Should you have any questions regarding this Alert, please contact the Garfunkel Wild attorney with whom you regularly work, or contact us at info@garfunkelwild.com.  

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On April 7, 2020, Governor Cuomo issued Executive Order No. 202.14. Among other things, this Executive Order addresses the State’s reallocation of ventilators and other medical equipment.

In relevant part, the Executive Order states: “I hereby issue the following directives for the period from the date of this Executive Order through May 7, 2020:  . . . Any medical equipment (personal protective equipment (PPE), ventilators, respirators, bi-pap, anesthesia, or other necessary equipment or supplies as determined by the Commissioner of Health) that is held in inventory by any entity in the state, or otherwise located in the state shall be reported to DOH.  DOH may shift any such items not currently needed, or needed in the short term future by a health care facility, to be transferred to a facility in urgent need of such inventory, for purposes of ensuring New York hospitals, facilities and health care workers have the resources necessary to respond to the COVID-19 pandemic, and distribute them where there is an immediate need.”

We interpret this directive as requiring any person or entity in New York State who possesses any of the listed medical equipment – including physicians, ASCs, and health care private practices –to report their possession of such medical equipment to the State Health Department. The Executive Order then gives the Health Department the ability to take possession of and transfer that equipment to any facility in the State that is in “urgent need.” of the equipment. Although vague, it is up to the Health Department to determine what constitutes “urgent need.”

As for just compensation, the Executive Order goes on to state that the “DOH shall either return the inventory as soon as no longer urgently needed and/or, in consultation with the Division of the Budget, ensure compensation is paid for any goods or materials acquired at the rates prevailing in the market at the time of acquisition, and shall promulgate guidance for businesses and individuals seeking payment.”

Finally, the Executive Order provides that there is a financial penalty of up to $2000 and up to a year in jail for failure to comply.  Further, licensed professionals who fail to comply may be found to have committed professional misconduct. 

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Should you have any questions regarding this Alert, please contact the Garfunkel Wild attorney with whom you regularly work, or contact us at info@garfunkelwild.com.  

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The Federal Communications Commission (FCC) has issued a new emergency program – the COVID-19 Telehealth Program (Program) – to provide eligible health care providers with funding of up to $1 million to maximize the provision of connected care services (e.g., telehealth) during the pandemic. Following is a brief overview of the Program and its requirements.

COVID-19 Telehealth Program Overview

Program Eligibility. Program eligibility is limited to certain nonprofit and public eligible health care providers. This includes:

  • post-secondary educational institutions offering health care instruction, teaching hospitals, and medical schools;
  • community health centers or health centers providing health care to migrants;
  • local health departments or agencies;
  • community mental health centers;
  • not-for-profit hospitals;
  • rural health clinics;
  • skilled nursing facilities; and
  • consortia of health care providers consisting of one or more entities falling into the first seven categories.

Eligible health care providers must be determined to be eligible by the Universal Service Administrative Company (USAC). This is done by submitting a FCC Form 460, which can be accessed through the FCC web site at: http://www.fcc.gov/licensing-databases/forms (each separate site or location of a health care provider is considered an individual health care provider site for eligibility determination purposes). Interested health care providers can submit an application, as described below, while their eligibility forms are being evaluated.

Application Timeline. As soon as the Office of Management and Budget (OMB) approves Program information collection requirements, applications will begin to be accepted. Funding awards will be granted on a rolling basis until the funding is exhausted or the pandemic has ended.

Application Content.

  • The FCC does not have a specific application but has mandated application content, which includes, among other things, a description of how patients will benefit from the applicant’s use of telehealth services. A description of the application requirements can be found in the FCC Rule and Order (R&O) at the link included below.
  • It is notable that the FCC recognizes that some providers may have been under pre-existing strain (e.g., large underserved or low-income population, health care provider shortages, limited broadband access and/or Internet adoption), and encourages applicants to document such factors in their applications.
  • While providers may use the Program to treat patients diagnosed with COVID-19, the Program is not limited to treating those types of patients as long as Program funds are used “to prevent, prepare for, and respond to coronavirus.”
  • The FCC will also consider, as part of an application, a showing that telemedicine directly aids in the prevention of pandemic spread by facilitating social distancing and similar measures in the community.
  • Applicants will be required to certify that, among other things, they comply with (i) HIPAA and other applicable privacy and reimbursement laws and regulations; (ii) applicable medical licensing laws and regulations; and (iii) applicable Program requirements and procedures.

For more information, the R&O may be accessed at: https://www.fcc.gov/document/fcc-fights-covid-19-200m-adopts-long-term-connected-care-study.

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As this pandemic unfolds, recommendations and requirements are being updated and changing at a rapid pace.   If you need any assistance in understanding or addressing these issues, please contact the Garfunkel Wild attorney with whom you regularly work, or contact us at info@garfunkelwild.com.  

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