While cannabis businesses continue to run and even thrive in the age of coronavirus, employers need to be aware of and prepare for new federal, state and local laws and regulations that provide the rules of the road for employees returning to work.
The Equal Employment Opportunity Commission (EEOC) has been issuing guidance and answering frequently asked questions concerning employment-related COVID-19 topics since March. In its September update, the EEOC addressed COVID testing and questions that can be asked of employees, among other subjects.
The EEOC previously stated that employers may administer coronavirus tests before permitting employees to return to the workplace. In its updated FAQs, the EEOC confirms that employers may conduct regular tests to ensure that employees are virus-free and do not pose a threat to coworkers and customers. The EEOC also stated that employers administering regular COVID tests is consistent with current CDC guidance and that following recommendations by the CDC or other public health authorities such as the Food and Drug Administration regarding employee testing and screening is proper. The EEOC reminds employers to keep apprised of updates from the CDC and FDA as their guidance may change.
Questions for employees
The EEOC also confirmed that employers may ask employees returning to the worksite if they have been tested for COVID, which apparently permits employers to ask if the employee’s test was positive or negative. Because an employer’s right to ask employees about COVID testing is based on the potential threat that infected employees could pose to others if they physically return to work, the EEOC clarified that asking employees who exclusively work remotely about potential COVID status would not be appropriate. The EEOC also stated that an employer may not directly ask whether an employee’s family members have COVID or symptoms associated with COVID as the Genetic Information Nondiscrimination Act (GINA) generally prohibits employers from asking medical questions about employees’ family members. However, the EEOC clarified employers may ask employees if they have had contact with anyone diagnosed with COVID or who may have coronavirus symptoms.
The Americans with Disabilities Act (ADA) requires employers to maintain information regarding employees’ medical condition in confidence. The EEOC’s updated FAQs state that managers who learn that an employee has COVID may report this information to appropriate individuals within their company in order to comply with public health guidance. Employers should consider instructing supervisors on how to make such reports and instructing employees who have a need to know of the COVID status of coworkers to maintain the privacy of that information. The EEOC also clarified that workers may report to managers about the COVID status of a coworker in the same workplace.
The state of California recently released a “COVID-19 Employer Playbook” which provides guidance on employees returning to work. That playbook states that employees with COVID-related symptoms may return to work 24 hours after their last fever, without the use of fever-reducing medications, if there had been an improvement in symptoms and at least 10 days had passed since symptoms first appeared.
On August 24, the California Department Public Health also released similar guidance which reiterates that employees who have tested positive for COVID could return to the workplace when: (a) at least 10 days have passed since symptoms first appeared; (b) at least 24 hours have passed with no fever (without the use of fever-reducing medications) and (c) their other symptoms have improved. Individuals who test positive for COVID and who never develop symptoms may return to work or school 10 days after the date of their first positive test.
Employers should check local public health orders when determining how and when to return to the workplace an employee who has recovered from COVID. Employers should consult with counsel when implementing new policies and procedures related to COVID, particularly considering the guidance issued by government authorities continues to evolve rapidly.
Finally, a number of local governments in California, such as the cities of San Francisco, San Diego and Los Angeles, have enacted return-to-work ordinances generally requiring employers to offer open positions to former employees who have been separated from employment due to COVID-related business slowdowns or government-issued shutdown orders. The California Legislature has also presented to the governor a bill that would similarly require employers in the state to offer vacant job positions to former employees whose employment ended due to COVID.
While the San Francisco ordinance only addresses positions based in San Francisco, and other ordinances primarily address large employers in the hospitality and restaurant industries, cannabis industry employers should consider offering vacant job positions to former employees whose employment ended due to COVID to comply with these ordinances and to avoid potential legal claims from former employees.
Employers are strongly advised to consult with counsel to make sure they are following the requirements of these new laws and regulations.