March 2021 OBA Legal Briefs

• Happy Anniversary! It’s 2020.1! (COVID-19 workplace and vaccination policies)
  • Inquiring about disability and medical exams
  • Confidentiality
  • New hires
  • Reasonable accommodations
  • Discrimination in the workplace
  • Vaccinations

Happy Anniversary! It’s 2020.1!

(COVID-19 workplace and vaccination policies)

By Andy Zavoina

It was just about a year ago that we all became even more intimately familiar with what the term “pandemic” really meant to our personal and professional lives. From getting a mask, to getting several and remembering to have and wear them, to opening branches to appointments only, to working from home – our lives changed on many levels. Few of us thought this year would be 2020.1 even though, when we flipped that calendar to January 1, we knew life in the abnormal would not revert to what we considered normal. The worst of it is that we are not out of the woods yet. Much depends on “the herd” getting vaccinated so that those with COVID-19 infections will be less impacted and most of us can avoid any COVID-19 related illness altogether.

The problem is that we are racing the clock. As people take time to get vaccinated, the virus mutates and may become less affected by the medications and this could lead the way to a new surge of infections. We must get ahead now. But people have choices, and some do not want vaccinations. Some people believe working at home is sufficient protection and they are content to do so, at least until there are enough people inoculated out there who remain healthy and without adverse effects from the vaccination itself. It appears many staff are productive working from home and content to be there for awhile. Still, there is a need to have staffing at the branches and especially so as those in “the herd” who are our customers want to do business face to face. Considering the long game and the fact that we did not think we would still be dealing with these issues after a year, it’s time to plan accordingly.

Increasingly it sounds like the pandemic environment of today will last until the year end, at least to some large degree. So, bank management should mitigate risks to the bank and staff and decide what will be done, recognizing that this is less of a temporary situation than we thought. Experience it now and use the lessons learned for preparedness and making the best of what we do have. This article will address the ongoing question of employee requirements in the continuing pandemic environment.

One of the first questions we received about the pandemic a year ago is one we can still anticipate today. In this case there were several nested questions. If an employee takes vacation days and travels, especially to an area where the COVID-19 infection rate is higher, and then returns home, can they come back to work right away? Should they quarantine before returning to work? Does the bank have to pay them for that quarantine period? Does the bank have to allow them to work from home? What if this was a lower performing employee to start with and the entire situation is not sitting well with coworkers who must take up the slack? To make the issue current you may add does it matter if they were vaccinated, not vaccinated, or opted not to get one when it was offered? And finally, can the bank require employees to be vaccinated?

I addressed several of these issues in the May 2020 Legal Briefs. I will highlight a few of the more salient points here but encourage you to review that May issue for more information.

The Equal Employment Opportunity Commission (EEOC) oversees anti-discrimination issues in the workplace, including accommodations for the disabled, which includes those suffering from a disease. The Americans with Disabilities Act (ADA) regulates what the bank can ask about a disability and medical exams for all employees and job applicants, whether they have a disability or not. The ADA prohibits the bank from excluding individuals with disabilities from the workplace for health or safety reasons unless they pose a “direct threat,” which means a significant risk of substantial harm even with reasonable accommodations. Those accommodations include social distancing, splash shields, sanitizing stations, etc.

The EEOC uses four factors to identify whether an employee poses a direct threat: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that potential harm will occur; and (4) the imminence of the potential harm. Guidance from the Centers for Disease Control and Prevention (CDC) says this pandemic does qualify as a direct threat and it allows the bank to make medical inquiries to protect staff and imposes other restrictions we have come to live with daily. The bank is free to ask if someone is experiencing influenza-like symptoms, such as a fever, cough, loss of taste, etc. These are COVID-19 symptoms. The replies about a person’s illness must remain confidential, however. During a pandemic, the bank can take a person’s temperature which would normally not be allowed as it is considered a medical exam. And the bank may send someone home because they exhibit flu-like symptoms. This is done to preserve a safe workplace for those at work. A doctor’s note may even be required for a person to return to work.

As we have progressed in dealing with the pandemic, some of our procedures and plans have been refined. Here are some thoughts:

Inquiring about disability and medical exams

1. There is no set of “required” screening questions. The bank is restricted on what is asked to protect all employees as these must relate to the direct threat at hand. That is, flu-like symptoms, loss of taste and smell, etc. Questions being asked by public health authorities are the best guidance on what to ask which are pandemic related. These may expand or contract as various symptoms change and are better understood.

2. The bank may actually administer COVID-19 tests if it is considered job related and consistent with a business necessity (remember, these terms may be subjective). It may be done if that person is a direct threat, under the CDC guidance. The tests administered must be considered accurate and reliable. The bank should rely on CDC and Federal Drug Administration (FDA) guidance as well as its own record of false positives, or false negatives.

3. As people have experienced COVID-19 and recovered, there is much discussion about their immunity due to antibodies in their system and their ability to return to work. The CDC guidance indicates this should not be considered in whether a person should be allowed to return to work. As a result of this guidance, the bank may not rely on it; that would then violate the ADA as an antibody test would be a medical exam. If the CDC felt this was credible, it could be allowed, but that is not the case here, as opposed to taking a person’s temperature.

4. Guidance updated in September 2020 says that the bank may ask all employees who will be physically entering the bank’s facilities if they have COVID-19 or symptoms associated with COVID-19 and ask if they have been tested for COVID-19. In my experience this is usually followed by “in the last 14 days” as that is the commonly accepted incubation period for symptoms to show. It never means that a person could not have been infected any time after having a test with negative results. Additionally, keep in mind the “direct threat” perspective for allowability of these and other screening questions, and for those employees who are working from home and are not physically interacting with coworkers or customers, the bank would generally not be allowed to ask these questions.

5. When the bank screens staff, it is not necessarily an all or nothing affair. But the bank cannot target just one employee for screening unless it has a reasonable belief based on objective evidence that this person might have the disease.

6. Asking questions the right way is as important in screening staff as it is on the loan desk for fair lending. As an example, the bank cannot ask if the employee has any family members if they are positive for COVID-19 or have symptoms as this would violate the Genetic Information Nondiscrimination Act (GINA). Realistically it also is more limiting and a question that could be asked would be “have you have had contact with anyone who has tested positive or has COVID-19 symptoms?” Again, this is often followed by “within the last 14 days” for the same reason noted above. If the employee does not have symptoms and has not contact, they are hopefully healthy.

7. What can the bank do if an employee wants to come back to work in the bank branch, but refuses to answer screening questions or have their temperature taken? In this case the bank may follow the ADA to protect the others at work and refuse access. Realistically, asking why they object is the best action. If the employee does not want this done in public or feels their replies would be conveyed to others without a need to know, reasonable accommodations or explanations may be made.

8. Nothing from the EEOC or ADA prohibits the bank from asking staff who work on-site daily or occasionally, questions about their symptoms as part of workplace screening for COVID-19 if that employee says they feel ill.

9. The bank may always ask an employee who called out sick why they were absent from work. That is not considered a disability-related question or something prohibited under the ADA.

10. The bank can ask questions about where a person traveled. This is not an ADA disability-related inquiry. If the CDC or state or local public health officials recommend that people who visit specified locations remain at home for a certain period of time, an employer may ask whether employees are returning from these locations, even if the travel was personal. There has been no official guidance on this as to paying staff. Some employers, even outside of banking, have not counted the days off from work as unauthorized absences, but whether an employee is paid for that time or not is up to the employer. We do recommend being consistent.

Confidentiality

11. As to the confidentiality of medical information, what should the bank do with this information gathered from staff and retained? Similar to many banks separating financial statements of insiders from loan files, medical information should also be separated from an employee’s regular personnel file. It should only be accessible by those with a need to know. In fact, the ADA requires that all medical information about a particular employee be stored separately from the employee’s personnel file.

12. If an employee is positive for COVID-19, the bank may release that information to a public health agency. This may be necessary for infectious contact tracing as an example, and the agency will have confidentiality standards of its own to follow to protect the employee. For the same reason, if the bank used a temporary staffing agency to provide employees, that staffing agency can notify the bank if a person who was assigned to the bank was later diagnosed as positive. The bank and a public health agency may need this information to do contact tracing.

13. In the case of a supervisor learning that an employee is symptomatic, confidentiality of this medical information and the protection of others are of equal weight. The bank then has an obligation to all parties. The medical information on the employee is separated and restricted to a need-to-know basis.

A bank representative may interview that symptomatic employee and determine who they may have come in contact with. Then, the other employees may be told something to the effect of, “you may have had contact with an employee who has showed signs of being positive for COVID-19 and you should be tested and may need to quarantine or telecommute…” Respecting the confidentiality of all staff precludes the symptomatic employee from being named. Others may be able to deduce who that was, but that is no reason for the bank to violate the ADA and name them. Those with a need to know, who actually need to know, should be reminded that the information is not to be shared unless required to do so. Determining internally who all the managers and supervisors will be with a need to know are, should be done in advance and all staff should be trained to understand the process and the need for confidentiality.

Continuing with the notification example, if all employees are aware that the bank has done basic contact tracing, they will better understand that being told, “someone in this department has tested positive and you may have had contact with them last Monday through Wednesday,” so they will understand the when, where and how of the situation and the “who” is not specifically required, only that the bank has already determined that it may have happened.

If that positive employee begins working from home, coworkers may be told that one or more employees, by name, are now working from home. But the specific reason (i.e., they tested positive) need not be disclosed. Again, this protects confidentiality.

Advance training can make this more acceptable to everyone involved.

14. As just discussed, a supervisor is not violating any ADA rules by reporting the illness of an employee while respecting confidentiality of that employee. Similarly, no coworker violates any prohibitions by making the initial report to their supervisor.

I have heard more than once of an employee talking with a coworker and commenting that they must have an allergy as they’ve lost the sense of taste and smell, as an example. The coworker may comment that those are COVID-19 symptoms and that person answer questions about that at the beginning of every shift, followed by “why are you here?” But people have begun to tune out the common screening questions and provide the automatic “yes” and “no” responses automatically and without thinking.

15. One last note pertaining to confidentiality of medical information. The ADA requires this medical information to be stored separately from their personnel file. If an authorized person has this information, the ADA rules apply whether they are in their office, at a remote location or even working from home. Information on forms, written on notepads or stored on a laptop or mobile phone must still be protected from snooping eyes.

New hires

16. Here are some additional points of interest to Human Resources as many banks are hiring again and business is increasing:

• • Job applicants may be required to submit to COVID-19 screening as conditions for employment, so long as this is applicable to all who apply for that job.
  • A medical exam – i.e. taking one’s temperature, may be a requirement for employment the same as for returning to work. It should be noted that a fever is not conclusive proof of having COVID-19.
  • If a new hire has symptoms of COVID-19, their start date may be delayed as a result. This is done to avoid introducing the virus into the workplace.
  • A job offer could also be rescinded if the employee cannot enter the workplace in a safe manner for them, or other persons, when they have COVID-19.
  • If that employee has underlying conditions, such as being over 65 years old, pregnant, heart condition, etc., those persons could not be denied employment because of those conditions and the fact that they may be at a higher risk. All the exceptions to normal policies here are due to the pandemic, not the underlying condition.

Reasonable accommodations

17. If the bank has an at-risk employee who is more susceptible to COVID-19, such as being over 65 years old, pregnant, heart condition, etc., and that person must work in a branch, the bank should provide reasonable accommodations unless that would cause an undue hardship on the bank. The bank is not responsible under the ADA to predict that an employee requires a reasonable accommodation, but rather the employee must request this. Undue hardship includes significant difficulty or expense in meeting the employee’s needs. The pandemic may have lessened the available workforce or materials necessary to construct reasonable accommodations, so what may have been feasible pre-pandemic may not be now. Also, what was affordable in the past may not be now based both on current income and expenses.

These are ADA rules the bank addresses every day, but the pandemic conditions may increase the necessary accommodations. The bank should do what it can to reduce exposure for at-risk staff such as implementing social distancing, adding splash shields, adding sanitizer stations, etc. If the only area where this work can be done does not allow for protections without some expensive buildout then the bank may be able to claim an undue hardship. Even then the bank is encouraged to work with an employee with each exercising some flexibility in accommodations, temporary job transfers, work schedule modifications, etc.

If an employee who is at-risk is already working from home, but the bank is beginning to plan on moving all staff back into branches, reasonable accommodations should be considered at this time. Prior planning will make preparation and a transition easier. This includes further modifying the employee’s workspace even if it had been modified prior to the pandemic because of the employee’s hardship.

18. An employee who is not themselves disabled is not entitled to reasonable accommodations because of potentially exposing a family member. The ADA does not require that the bank accommodate an employee without a disability based on the disability-related needs of a family member or other person with whom s/he is associated. For example, an employee without a disability is not entitled under the ADA to work from home as an accommodation to protect a family member with a disability from potential COVID-19 exposure. The bank could provide an accommodation or be flexible, but it is not required to do so.

19. Let’s now address the employee who had reasonable accommodations made for them in the branch, but who is now working from home at the bank’s request. If the employee makes an additional request of the bank to accommodate the home workspace, the bank should discuss these needs with them. What additional accommodations are necessary, and why? If the changes are necessary for prolonged work at home conditions, this may be something the bank wants to do. The employee should have as functional a workspace at home, where the bank has asked them to work, as they have in the branch. Flexibility on the part of the bank and the employee may be necessary however, as what is reasonably done in a branch may not be possible at the employee’s home.

20. As the bank begins transitioning staff from work at home status back into the branches, might this create an opportunity for some staff to request a continuation of the home-work status as their reasonable accommodation? It could trigger more requests, but the bank is not obligated to consider working from home as a permanent solution to staff who were allowed to work from home due to the pandemic. Any time an employee requests a reasonable accommodation, the bank is entitled to understand the disability-related limitation that necessitates the request. If there is no disability-related limitation that requires working from home, then the bank does not have to provide this as the accommodation. If there is a disability-related limitation but the bank can effectively address the need with another form of reasonable accommodation at the branch, then the bank can choose that alternative.

21. If the bank opted to have an employee work from home because of the pandemic and limited one or more essential duties to make this happen, if that employee wants to continue to work from home, the bank is not obligated to allow this just because it did so initially. Because the bank allowed the employee to work in a safer environment to protect them does not mean the bank has permanently adjusted their job description or duties. The bank is under no ADA obligation to refrain from restoring that employee’s essential duties.

Discrimination in the workplace

22. Now may be a time to remind management, supervisors and all other staff that federal Equal Employment Opportunity laws prohibit harassment or other discriminatory acts against coworkers based on race, national origin, color, sex, religion, age (40 or over per the Age Discrimination in Employment Act which is separate from the CDC guidance that those 65 and over are at high-risk for severe COVID-19 complications), disability, or genetic information, and if any of these support a person’s decision not to be vaccinated, the effects test could lead to claims of discrimination against the bank and that person. It may be particularly helpful for the bank to remind all staff of their roles in watching for, stopping, and reporting any harassment or other discrimination. The bank may also make clear that it will immediately review any allegations of harassment or discrimination and take appropriate action.

Vaccinations

Now we will explore vaccinations for a moment. Some people are all for them and believe each person will be safer around others who have been vaccinated. The other side includes many who do not trust the various chemicals that are used in the different vaccinations being offered and/or believe the process was too rushed and that the vaccinations themselves may not be safe. Some want to wait and see more of the long-term effect while others, including medical workers, simply do not want the shots. Bank management has to weigh the desires of each group, but one does not necessarily feel safe around the other. Can the bank require staff to be vaccinated? Can the bank provide an incentive to get vaccinated?

As we go to press Johnson & Johnson has been approved as the third provider for COVID-19 vaccinations and has begun shipping its product. More and more people will have vaccinations readily accessible and the bank must make some decisions on its policy.

In December 2020, the EEOC published an FAQ guidance document, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” as its recommendation that employers, in our case banks, encourage staff to get the inoculations for COVID-19. And the following month it issued proposed regulations allowing the banks (and other employers) to offer de minimis incentives as part of a wellness program that incentivizes staff to get the vaccinations. However, this proposal was withdrawn on February 17. Now there is little guidance as to payments of incentives as these may conflict with the ADA and GINA and any regulation must be carefully crafted for compliance.

The regulation was not withdrawn because it was poorly crafted, but rather as President Biden took office, a White House Memorandum required all executive departments and agencies to immediately withdraw any proposed rules that had not yet been published in the Federal Register. This one had not. But the EEOC had been asked by many including the US Chamber of Commerce to better explain what de minimis was in this case. Prior to this it was interpreted to be a small consideration like a gift card or T-shirt. A court case more appropriate to this topic of vaccinations used guidance that 30 percent to the treatment cost was an allowable amount. But there was no clarification issued and the proposal has been withdrawn. Some employers are or were offering time off from work for anyone getting vaccinated or cash payments of up to several hundred dollars based on some news reports.

Absent EEOC guidance however, any bank offering an incentive must consider the ADA’s requirement that the disabled enjoy the same benefits and privileges of employment as the abled employees. So, under the ADA and in response to any person whose religious beliefs preclude them from being vaccinated, they are entitled to the same incentives even though they will not be vaccinated. They may be required to complete some other requirement such as a safety class on dealing with people in a pandemic environment. This could be suitable and not conflict with ADA requirements or religious beliefs.

The EEOC December guidance document actually allows banks to require staff to be vaccinated, but as usual, there are some exceptions carved out as noted already which may involve health concerns and religious values. There are many hurdles to requiring a vaccination and more still to fire an employee if they have ADA protections.

For ADA purposes, receiving a vaccination is not considered a medical exam. If it were, this could be deemed intrusive and in violation of the ADA. But the screening questions that must be answered prior to being inoculated are considered a medical exam subject to the ADA standards for disability related inquiries. This means the bank would need to demonstrate that the screening questions are “job-related and consistent with business necessity.” To meet this standard, the bank would need to have a reasonable belief based on objective evidence, that an employee who does not answer the questions and then does not receive a vaccination will pose a direct threat to the health or safety of themselves or others.

There are two circumstances under which disability related screening inquiries may be asked without being job related and a business necessity. 1) If the bank offers staff a vaccination on a voluntary basis, the ADA requires that the employee decides to answer pre-screening questions making it voluntary. If the employee chooses not to answer the questions, the employer will not provide the vaccine and the bank may not retaliate against the employee for refusing to answer. 2) If an employee receives a bank-required vaccination from a third party that does not have a contract with the employer, such as a pharmacy, the ADA “job-related and consistent with business necessity” restrictions on disability related inquiries would not apply.

If the bank adopts a policy that vaccinations for COVID-19 are required, it would be because it has a requirement that an employee shall not pose a direct threat to the health or safety of individuals in the workplace. As noted earlier, there are four factors in determining whether a direct threat exists:

1- the duration of the risk;
2- the nature and severity of the potential harm;
3- the likelihood that the potential harm will occur; and
4- the imminence of the potential harm.

A direct threat could be that an unvaccinated employee would expose others in the bank. The bank would have to determine that the employee who cannot be vaccinated due to disability and poses the threat cannot be provided reasonable accommodations that would eliminate or reduce this risk. Even with this, other laws and rights may protect the employee from being dismissed. Reassignment of responsibilities may be in order.

To summarize: being flexible, working with staff to find reasonable accommodations for the benefit of all, and encouraging vaccinations while addressing the needs of those dissenting may be the recommended actions, but each bank must decide, and both legal counsel and the bank’s human resources department should be involved in forming any policy.