As many U.S. organizations plan for the return of employees to worksites, legal experts Ellen McCann and Tamika Newson weigh in on various legal considerations. We review recent statistics from a Unum survey that shows how employers are facing this issue, with a third of employers saying they do not yet have a plan in place. We then dive into regulatory considerations, practical questions and contingency planning.
- As recently as April 23, the Equal Employment Opportunity Commission (EEOC) shared guidance stating that employers can ask for a COVID-19 test before they allow workers to return. Employers can also require fitness-for-duty tests, ask workers to wear masks or ask them to stay at home if they are unwell. [05:01]
- Consider your documentation strategy: If you are going to ask a series of questions, such as symptoms or family exposure or recent travel, where is that documented? It needs to be confidential. [07:03]
- Who will ask these questions? Do you want it to be HR, a dedicated response team or a third-party vendor? [07:42]
- Build a game plan for all the scenarios that could come out of this. Do you want to do testing? What sort of testing? What will you do if employees don’t take a test? Or if they test positive but refuse to leave the worksite? [08:08]
- What are you going to require for each individual to return to work and how are you going to ensure it is consistent? Be wary of making assumptions about employees, such as saying we’ll only bring back young and healthy people first. [08:59]
- Best practices include building a dedicated response team that will deal with return to work. It’s advisable to have someone on that team who can give employment law advice. You’ll need to address issues with testing and consistency in how you treat employees, while taking into consideration all the other applicable laws, such as Title VII and local governmental orders. [10:49]
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Assistant Vice President, Legal Counsel, Unum’s Employment Law Group
Ellen McCann is an acclaimed national speaker on leave management issues including FMLA and ADA. She is also a certified trainer for SHRM and CE credit. As Assistant Vice President, Legal Counsel for Unum’s Employment Law Group, Ellen advises Human Resources on all employment-related legal issues. She also provides legal support to Unum’s Absence Management Center, which provides leave administration services to its customers. Presently, Unum’s leave administration product includes administration of close to 200 state leave laws in addition to FMLA and covers over 2.2 million lives. Ellen has been employed by Unum for 23 years and worked for a law firm in Boston for seven years prior to joining Unum.
Assistant Vice President and Legal Counsel, Unum’s Law Group
Tamika Newson joined Unum after 22 years of employment law counseling and litigation as a Partner in several large law firms. Prior to joining Unum, she litigated employment matters nationwide. Tamika advises Human Resources on all employment-related legal issues, with particular emphasis on FMLA, ADA, leaves of absence, wage/hour compliance, military leaves, restrictive covenants and employee-relations issues. She also provides daily legal support to Unum’s Leave Management Center and its ADA Services Center. Tamika received her BA from DePauw University and her JD from Hamline University School of Law (now Mitchell Hamline). She is a certified trainer for CE credit and is a frequent national speaker on FMLA and ADA. She has been selected as a Best Lawyer in America in the area of employment law every year from 2013 to 2019.
Clare Morin is the Content Marketing Manager at Unum and a journalist who’s spent the last 20 years interviewing hundreds of thought leaders on topics ranging from wellness to culture, finance, human resources and technology. Born in the UK, raised in Hong Kong and based in the U.S. since 2009, she brings a global outlook to the HR Trends studio.