Indiana roofing contractors who believe one of their employees have been exposed to COVID-19 can legally request a COVID-19 test before the employee can return to work. The Equal Employment Opportunity Commission (EEOC) released new guidance on this issue recently.
What began in March with temporary job shutdowns soon evolved into a global pandemic with severe economic consequences that have caused a significant shift in the construction industry. Knowing your legal rights as an employer can help you navigate this new normal.
Summary of EEOC Guidance
As the agency responsible for enforcing federal disability laws in the U.S., including the Americans With Disabilities Act, or ADA, the EEOC has the authority to regulate COVID-19 testing.
Indiana roofing contractors should take care to stay on top of testing for employees since most of the counties throughout Indiana are showing a 10-15% positive result on testing.
The ADA, which everyone who employs more than 15 people must comply, regulates when an employer can inquire into an employee’s sickness and request they get tested. If you believe your employee’s illness is “job-related and consistent with business necessity,” you have that legal option.
Before this latest EEOC guidance, employers could check their employees’ temperature, but the EEOC had not issued guidance on when they could test employees for COVID-19. Using the business necessity standard, employers who believe in objective evidence that your employee may pose a direct threat to customers or other workers can ask that employee to submit to coronavirus test.
The ADA does not interfere with employers following recommendations by the Centers for Disease Control or other public health authorities regarding when and whom to test. They leave that up to the individual company.
Testing administered based on CDC guidelines meets the ADA’s “business necessity standard,” so employers need not be concerned in such instances that they may be breaking the law.
The CDC recommends employers use a viral test to diagnose the coronavirus, not just an antibody test. The agency also now recommends testing asymptomatic employees who have had close contact with someone diagnosed with COVID-19.
The guidelines state that employees should request employees get tested if they have been in contact with someone with COVID-19 for more than 15 minutes. The CDC also recommends testing employees if they exhibit potential symptoms of the virus if their job functions require them to be near customers or coworkers, or they are ending home isolation after suspected COVID-19.
Get testing periodically for any employees who must be in regular contact with customers and work crew members. Employers can send them to a rapid-testing facility, their doctor, or an urgent care center. Some counties may also offer drive-through testing with an appointment.
Back at work, designate an employee to log COVID-19 illnesses for your business. Keep the log confidential and separate from an employee’s personnel file. Sanitize work areas used by any employee who has tested positive for coronavirus.
Additional Safety Measures
In addition to following CDC guidelines to keep your roofing teams healthy, the Occupational Safety and Health Administration, or OSHA, recommends limiting in-person meetings and requiring facial coverings and frequent handwashing during work. Provide hand sanitizing stations at every worksite and, if possible, stagger the work schedule, so fewer workers are on the job at any one time. Taking these steps will help prevent the spread of the virus.
Cloth masks are not acceptable substitutes for personal protective equipment if a worksite requires respirators or face masks, according to OSHA. Where employees can wear cloth masks, employers should provide additional disposable masks for workers to use when theirs become soiled, wet, or otherwise contaminated.
As an additional safety measure for your business, reach out to your subcontractors and staffing agencies to ensure they have non-punitive policies in place and that all their workers have the option to take time away from work if they need it due to COVID-19. Just as you need to review your employee policies, so do the other professionals with whom you work.
You may also consider adjusting your sick leave policy to accommodate those who have to self-isolate due to a possible risk of COVID-19 contact. This adjustment could also include employees who need time away from work to care for an immediate family member who may be ill.
Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.
Cotney Construction Law is an advocate for the roofing industry, General Counsel of Indiana Roofing Contractors Association (IRCA) and several other industry associations.