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In anticipation of the expiration of Minnesota’s Stay-at-Home Executive Order on May 17, Governor Tim Walz issued Emergency Executive Order 20-54 titled “Protecting Workers from Unsafe Working Conditions and Retaliation During the COVID-19 Peacetime Emergency.”  This Executive Order, as well as countless orders across the United States, purports to expand the scope of legal protections afforded to employees as businesses look to reopen and/or bring more employees back to the workplace.  The Minnesota Order states, in part:

[A]ll workers need protection from unsafe work conditions during this pandemic.  Workers whose jobs place them in regular proximity to co-workers or require regular engagement with the public are also at increased risk of COVID-19 exposure.  Workers with an increased risk of exposure also have an increased risk of transmitting the virus to others, including patients, residents, family-members, co-workers, and the public. … Workers should not have to sacrifice their health and safety for economic security.  It is important for workers to raise safety and health concerns freely and without fear of retaliation.  Workers should be protected from loss of income if they refuse to work under unsafe or unhealthy conditions.

Recognizing Worker Protections and Rights

The Executive Order sets forth the following “worker protections” and to invest the Department of Labor and Industry with investigative and remedial authority:

• Employers must not discriminate or retaliate in any way against a worker communicating orally or in writing with management personnel about occupational safety or health matters related to COVID-19, including asking questions or expressing concerns.
• Employers must not discriminate or retaliate in any way against any worker for wearing gloves, a cloth face covering, eye protection, or other protective gear which the worker has personally procured and reasonably believes will protect them, their coworkers or the public against COVID-19 in the course of their work, provided that the protective gear which the worker has personally procured does not violate industry standards or existing employer policies related to health, safety, or decency. Employers may require use of employer-provided protective gear that meets or exceeds protective gear procured by employees.
• Workers have the right to refuse to work under conditions that they, in good faith, reasonably believe present an imminent danger of death or serious physical harm. This includes a reasonable belief that they have been assigned to work in an unsafe or unhealthful manner with an infectious agent such as COVID-19. Employers must not discriminate or retaliate in any way against a worker for the worker’s good faith refusal to perform assigned tasks if the worker has asked the employer to correct the hazardous conditions but they remain unchanged. These situations should be reported immediately to the Minnesota Department of Labor and Industry.
• Workers and authorized representatives of workers have the right to request that DLI conduct an inspection of their workplace if they believe that a violation of a safety or health standard that threatens physical harm exists or that an imminent danger exists. Employers must not discrimination or retaliate in any way against a worker because such worker has requested an inspection.

The Executive Order also makes clear that employees who lose or terminate their employment for exercising these purported rights remain eligible for unemployment benefits.  The Order states:

[A]ny worker who quits their employment because the employer has failed to correct an adverse work condition related to the pandemic which would compel an average, reasonable worker to quit, if the worker has complained to the employer about such adverse work condition and has given the employer a reasonable opportunity to correct such adverse work condition, to no avail, or has been retaliatory terminated from their employment as a result of exercising the work rights [described in the Order], shall not lose unemployment insurance benefits eligibility ….  Examples of an adverse work conditions include an employer’s failure to develop or implement a COVID-19 Preparedness Plan, … or failure to adequately implement Minnesota OSHA Standards or MDH and CDC Guidelines in the workplace related to COVID-19.

It remains to be seen whether the rights this Executive Order purports to extend Minnesota employee will withstand legal scrutiny.  Arguments can and certainly will be made that the Governor has overreached in this Order by expanding rights and extending protections beyond those provided for in the applicable statutory provisions.  That being said, the cost of a legal battle, the potential adverse publicity and distraction attendant to such a fight, and the desire of most employers to promote labor peace as well as business efficiency/productivity in these very uncertain times, militate in favor of reasonably anticipating, planning for, and addressing potential employee safety concerns related to the COVID-19 pandemic.

The development and implementation of the COVID-19 Preparedness Plan required of all Minnesota businesses is a good starting point.  The Minnesota Department of Employment and Economic Development has published a template Preparedness Plan and checklist for use by Minnesota employers. In addition, MnOSHA has developed a series guidelines and recommendations to promote workplace safety in connection with the pandemic.  Finally, resources and guidance for safely returning to work and working in a COVID-19 world is available and regularly update on the CDC’s website. 

Needless to say, there is no “one shoe size fits all” approach here.  One may be prudent and appropriate for one employer will not be feasible or necessary for another.  All employers should thoughtfully assess their unique workplace challenges and risks to fashion reasonable safety and other pandemic-related mitigation measures that can be implemented from both a practical and economic standpoint.  Perfection is not a reasonable or feasible standard when dealing with a virus of the nature of COVID-19.  Despite best efforts, cases may appear among your workforce.  What matters most for employers under these circumstances is what you did in advance in an effort to minimize exposure in the workplace, what plans you put in place for addressing a positive case among your workers, and what you did once you became aware that one of your workers was infected.  A thoughtful plan addressing each of these areas, together with a record of compliance with your plan, will go a long way toward protecting you from possible legal exposure as a result of COVID-19 issues.

Prompt and effective communication with your employees regarding what you are doing and the plans you have in place, and perhaps engaging leaders among your rank and file in the plan development process, will also aid you in limiting (if not altogether avoiding) the kind of issues under the Governor’s Executive Order.  Employee anxiety increases together with the prospect that they will reach outside the organization for help when they do not feel their concerns are being heard or taken seriously or there is some other communication lapse.  So, maintaining good and open lines of communication with employees, including encouraging employees to promptly bring concerns to your attention and reasonably addressing them when they arise, is critical to avoiding a knock on your door by the DOLI and other government agencies.

Reasonable Accommodations Related to COVID-19

In addition the above delineated worker rights, the Executive Order directs the Minnesota Department of Human Rights “to issue guidance, as necessary, consistent with federal and state anti-discrimination laws, including the MHRA, regarding employers’ obligations to provide reasonable accommodations related to COVID-19 for qualified employees with disabilities, … which may include employees with health conditions who are at high-risk, as determined by the relevant guidelines from the CDC of MDH, if they are exposed to or if they contract COVID-19.”  It also identifies possible reasonable accommodations including adjusting schedules or workstations, allowing employees to work from home, or permitting use of leave.

To date, the MDHR has not issued detailed guidance regarding this issue.  Its pronouncements thus far have been limited to the following statement:  “Workers who have a disability or an underlying health condition have the right to work with their employers to find a reasonable accommodation such as staggered work schedules or changing worker stations that allows them to do their job, while not compromising their health and safety. Employers should continue to find creative and flexible solutions to accommodate all employees with disabilities. This includes employees who are immigrants, such as refugees and undocumented immigrants.”

The EEOC, on the other hand, recently issued updated guidance regarding COVID-19 and the Americans with Disabilities Act (ADA) and other EEO laws.   This Guidance, which is presented in an FAQ format, is quite helpful in addressing how employers can legally assess and address COVID-19 workforce health and safety issues without running afoul of the ADA.  The key issues addressed in the Guidance include the following categories:

Disability-Related Inquiries and Medical Examinations 

The ADA limits the circumstances under which employers may make disability-related inquiries (i.e., questions that are likely to elicit information regarding a disability, such as whether an individual has or ever had a disability, the kinds of prescription medications an individual is taking, and the results of any genetic tests an individual has had) and conduct medical examinations of employees and applicants (including taking an individual’s temperature). For applicants, an employer may ask certain disability-related inquiries and conduct medical examinations only after a conditional offer of employment has been extended to the applicant. For current employees, an employer may ask disability-related questions and conduct medical examinations only if they are job-related and consistent with business necessity. For an inquiry or examination to be “job related and consistent with business necessity” the employer must have a reasonable belief based on objective evidence that (a) an employee will be unable to perform the essential functions of his or her job because of a medical conditions; or (b) the employee will pose a direct threat to the health/safety of himself/herself or other employees.

In the EEOC’s COVID-19 Guidance, restrictions on when and under what circumstances employers may make disability-related inquiries and conduct medical examinations have been loosened.  The EEOC has stated that during a pandemic an employer may:

• Ask an employee who calls in sick and ask all employees entering the work facility if they are experiencing any COVID-19 related symptoms (e.g., fever, cough, shortness of breath or difficulty breathing, sore throat, muscle aches/pains, new loss or taste or smell, gastrointestinal problems such as nausea, diarrhea or vomiting, or other symptoms identified by the CDC and other public health authorities);
• Take the body temperature of employees;
• Require employees to stay home if they have symptoms;
• Require a doctor’s note certifying an employee’s fitness for duty when they have been absent for COVID-19 reasons;
• Administer COVID-19 testing to employees before the enter the workplace to determine if they have the virus;
• Disclose the name of an employee to a public health agency when it learns that the employee has COVID-19 (but employer’s must otherwise protect the confidentiality of such an employee by refraining from disclosing his/her name to other employees);
• Screen job applicants for symptoms of COVID-19 and/or take an applicant’s temperature after making a conditional job offer, so long as it does so for all entering employees in the same type of job; and
• Delay the start date of an applicant who has COVID-19 or associated symptoms, and withdraw a job offer when it needs the applicant to start immediately but the individual has COVID-19 or associated symptoms.
• Ask an employee whether he or she has been exposed to anyone who has COVID-19 or symptoms of COVID-19.Employers should avoid directly inquiring as to whether any of an employee’s family members have the virus or symptoms, as the Genetic Information Nondiscrimination Act generally prohibits medical questions about an employee’s family members. However, a general inquiry that is not tied to familial relationship is permitted.

Reasonable Accommodation 

The Guidance addresses employer’s obligations to assess and potentially accommodate individuals with pre-existing conditions who may be at greater risk from COVID-19.The EEOC states that there may be accommodations that could (without undue hardship) offer protection to an individual whose disability puts him at greater risk from COVID-19 and therefore requests temporary measures to eliminate possible exposure, including changes to the work environment such as (a) designating one-way aisles; (b) using plexiglass, tables, or other barriers to ensure minimum distances between customers and coworkers whenever feasible; (c) temporary job restructuring of marginal duties; (d) temporary transfers to a different position; or (e) modifying a work schedule or shift assignment to permit an individual with a disability to perform safely the essential functions of the job while reducing exposure to others in the workplace or while commuting (i.e., using public transit).For employees who are teleworking, the accommodation obligation may extend to reasonable modifications to the employee’s home work environment subject, of course, to the undue hardship standard.

The COVID-19 pandemic does not eliminate or alter an employer’s obligation to engage in the interactive process with an employee who requests a virus-related accommodation.  The EEOC recognizes, however, that supply chain and other logistical issues, as well as staffing limitations, may give rise to virus-related undue hardships that may not exist but for the pandemic.  “For example, it may be significantly more difficult in this pandemic to conduct a needs assessment or to acquire certain items, and delivery may be impacted, particularly for employees who may be teleworking.  Or, it may be significantly more difficult to provide employees with temporary assignments, to remove marginal functions, or to readily hire temporary workers for specialized positions.”

Finally, the EEOC recognizes that in assessing whether an accommodation poses an undue hardship the expense of a particular accommodation may warrant greater weight in the employer’s analysis due to adverse economic conditions caused by the virus.  “Prior to the COVID-19 pandemic, most accommodations did not pose a significant expense when considered against an employer’s overall budget and resources …. But, the sudden loss of some or all of an employer’s income stream because of this pandemic is a relevant consideration.  Also relevant is the amount of discretionary funds available at this time – when considering other expenses – and whether there is an expected date that current restrictions on an employer’s operations will be lifted (or new restrictions will be added or substituted).  These considerations do not mean that an employer can reject any accommodation that costs money; an employer must weigh the cost of an accommodation against its current budget while taking into account constraints created by this pandemic.”

Return to Work Issues 

Finally, the EEOC Guidance addresses a number of ADA-related scenarios that could arise in the context of employees returning to work as government stay-at-home orders and other restrictions are modified or lifted.

• Can employers make disability-related inquiries and conduct medical exams to assess whether it may be necessary to exclude employees with a medical condition that places them at higher risk for COVID-19; i.e., that their risk of exposure due to presence at work may constitute a “direct threat” to that employee’s health and safety?

Yes. The EEOC states that “direct threat” must be determined based on the “best available objective medical evidence” and that “guidance from CDC or other public health authorities is such evidence.”Therefore, “employers will be acting consistent with the ADA as long as any screening implemented is consistent with advice from the CDC and public health authorities for that type of workplace at the time.

However, employers cannot exclude an employee “solely because the employee has a disability that the DCD identifies as potentially placing him at ‘higher risk for severe illness’ if he gets COVID-19.”  Rather, the employer’s “direct threat” determination “must be an individualized assessment based on a reasonable medical judgment about this employee’s disability – not the disability in general – using the most current medical knowledge and/or on the best available objective evidence.”  Employer’s must consider “the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm” – including the severity of the pandemic in a particular area and the status of the employee’s health (e.g., whether the employee’s disability is well-controlled), the employee’s particular job duties, the likelihood of exposure at the workplace, and measures that the employer is taking to protect workers from exposure (such as social-distancing measures).

Establishing a “direct threat” to an employee’s own health/safety is not simple or easy; the standard here is a very high one.  So, employers should not casually assume that because an employee has a condition that places him at higher risk for severe illness should he contract COVID-19 the employee can and should be prohibited from coming to work.  While perhaps well intentioned, an overly paternalistic approach here may land the employer in hot water.  Rather, a careful and individualized assessment must be made before any “direct threat” conclusion is drawn.

Moreover, even if an employer determines that the “direct threat” standard is satisfied in an individual case, the employer cannot exclude the employee from the workplace – or take any other adverse action – unless there is no way to provide a reasonable accommodation absent undue hardship.  An employer must engaged with the employee in the “interactive process” to “consider whether there are reasonable accommodations that would eliminate or reduce the risk so that it would be safe for the employee to return to the workplace while still permitting performance of essential functions.”  If there are no reasonable accommodations that permit this, “then an employer must consider accommodations such as telework, leave, or reassignment (perhaps to a different job in a place where it may be safer for the employee to work or that permits telework).”

The bottom line here is that employers should tread very carefully when considering prohibiting an employee from returning to work because the employee has an underlying medical condition that may make him more susceptible to severe illness if exposed to COVID-19.  The EEOC emphasized this point in its Guidance, stating: “An employer may only bar an employee from the workplace if, after going through all of these steps, the facts support the conclusion that the employee poses a significant risk of substantial harm to himself that cannot be reduced or eliminated by reasonable accommodation.”

• What are examples of accommodation that, absent undue hardship, may eliminate or reduce a direct threat to self?

The Guidance states that “[a]ccommodations may include additional or enhanced protective gowns, masks, gloves, or other gear beyond what the employer may generally provide to employees returning to its workplace,” as well as additional or enhanced protective measures such as “erecting a barrier that provides separation between an employee with a disability and coworkers/the public or increasing the space between an employee with a disability and others.”  Other possible reasonable accommodations may include “elimination or substitution of particular ‘marginal’ functions (less critical or incidental job duties as distinguished from ‘essential’ functions of a particular position) …, temporary modification of work schedules (if that decreases contact with coworkers and/or the public when on duty or commuting) or moving the location of where one performs work (for example, moving a person to the end of a production line rather in the middle of it if that provides more social distancing).”

It seems likely that the MDHR will generally follow the lead of the EEOC in response to the Governor’s directive to issue guidelines, as necessary, regarding employer’s obligations to accommodate qualified individuals with disabilities who are at higher risk for severe illness from COVID-19.  We will update you when any further guidance is published the MDHR and/or the EEOC.  In the meantime, if you have any questions regarding these issues please feel free to reach out to the Employment Relations Group at DeWitt.  The issues here are tricky, complicated, and filled with traps for the unwary.  We’re here to help you navigate this legal minefield.