I’m So Confused! Just How Long Does Your COVID-19-Exposed Employee Have to Quarantine?Just when you thought you had the rules down for when and how long an employee has to quarantine, the CDC changes the rules. Or has it? In its guidance, When You Can Be Around Others After You Had or Likely Had COVID-19 (updated on December 1, 2020), the CDC hasn’t really changed its tune. As we read it, 14 days is still the gold standard:

Anyone who has had close contact with someone with COVID-19 should stay home for 14 days after their last exposure to that person. . .  The best way to protect yourself and others is to stay home for 14 days if you think you’ve been exposed to someone who has COVID-19. Check your local health department’s website for information about options in your area to possibly shorten this quarantine period.

In its When to Quarantine Guidance (updated December 8, 2020), the CDC talks about maybe reducing the length of quarantine in some situations to “make it easier for people to quarantine by reducing the time they cannot work” and perhaps to “lessen stress on the public health system.” Ultimately, the CDC reminds everyone that local public health authorities look at local conditions and needs and make the recommendations you should follow. CDC suggestions about when someone who has not developed symptoms could consider stopping quarantine before 14 days from exposure are (1) after day 10 without testing or (2) after day seven after receiving a negative test result (test must occur on day five or later).

In short, this is complicated. When faced with this issue, you need to check recent guidance from the CDC (updated December 2, 2020) and your local health department. Cautious employers may want to stick with the 14-day quarantine. If this is a problem for you or your employees and you want to consider shortening the time a little, talk to your employee who has been exposed and find out this information:

  • Positive Test or Symptoms. Has the employee tested positive for COVID-19 or exhibited symptoms? If so, the employee should not come to work for at least 10 days after the positive test, but also not before she or he is symptom-free without medication. Be clear that the employee cannot return to work until she or he is no longer taking medication and continues to be symptom-free. Suggest that your employee follow the doctor’s orders.
  • Negative Test/No Symptoms. Has the employee had a negative test for COVID-19 (and the test was at least five days after the exposure)? If so, he or she can return to work seven days after the negative test. Again, only if the employee is symptom-free.
  • No Test/No Symptoms. If the employee has not been tested (or had a negative test too early, i.e., in that five-day window) and still has no symptoms, she or he can return to work after 10 days.

If you just aren’t sure, follow your local health department guidance.

EEOC Explore: The EEOC’s New Data Tool — What Does It Mean for Employers?The EEOC is trying to make it easier to get information about employment trends and has launched EEOC Explore, “an interactive data query and mapping tool” that gives you access to aggregate data on more than 56 million employees and 73,000 employers across the U.S. According to the EEOC’s FAQs, this tool will enable you to get data from the EEO-1 reports that employers file each year. With this tool, a user can slice and dice the aggregate information, including county-level details. For now, you can only access data from 2017 and 2018, although you can get previously publicly released data from a separate link. The EEOC notes that the data is aggregated and no one will be able to identify a particular employer or employee.

But What Does This Mean for Me?

We aren’t yet sure. On the plus side, if you are ramping up your affirmative action efforts or want to perform an equity audit of your workforce (in a privileged project with your lawyer), this may be a good source to use. On the other side, plaintiff’s lawyers or advocacy groups could use this to suggest that an employer is somehow excluding certain groups from its workforce.

In the meantime, if you have at least 100 employees or you are a federal contractor with at least 50 employees and a contract of $50,000 or more with the federal government, keep an eye on when to file your EEO-1 form. In the last few years, the EEOC has moved the deadline, and the COVID-19 crisis has complicated it even further. The latest information from the EEOC is that it will start collecting that data in March 2021.

Happy Thanksgiving! 7 Things for Which We Are Thankful – 2020 EditionMany of us are understandably anxious to put the year 2020 behind us and move onward and upward! But before we all sit down at the table and fill our plates and bellies to overflowing as we start the holiday season, we can all find some bright shining blessings in what has otherwise been a difficult year (to say the least). We are grateful to have weathered hurricanes, wildfires, global pandemics and a divisive election. We are hopeful for vaccines, social justice and the ability to gather with friends and family as we did once upon a time.

We are also grateful for many developments in employment law that occurred this year.

1. Clarity from the DOL on Joint Employer Status

The DOL gave us a final rule this year with updated guidance for determining joint employer status. The final rule:

  • Provides a four-factor balancing test to determine when a person is acting directly or indirectly in the interest of an employer in relation to the employee;
  • Clarifies that an employee’s “economic dependence” on a potential joint employer does not determine whether it is a joint employer under the FLSA; and
  • Specifies that an employer’s franchisor, brand and supply, or similar business model and certain contractual agreements or business practices do not make joint employer status under the FLSA more or less likely.

The rule also provides practical examples to demonstrate how the DOL would determine joint employer status under a variety of different factual situations. We like simple and straightforward, so we are thankful for this guidance in the final rule… for now.

2. The Ability to Screen Employees for COVID-19 under the ADA

Not to brown-nose the federal agencies, but we are also thankful for the EEOC’s guidance on the ADA and COVID-19. Given the uncertainty about so many things, it was nice to have relatively clear guidance from the EEOC that during this pandemic ADA-covered employers may lawfully:

  • Ask employees if they are experiencing symptoms of the pandemic virus and even take their temperatures;
  • Require that employees stay home if they have a confirmed case or are experiencing symptoms to prevent further spread; and
  • Administer a COVID-19 test to detect the presence of the COVID-19 virus when evaluating an employee’s initial or continued presence in the workplace and be assured that such testing, if consistent with current CDC guidance, will meet the ADA’s “job related and consistent with business necessity” standard.

We will have to continue to monitor regulations on this front as developments occur in our fight against the spread, but for now and the foreseeable future, we can do our part to keep employees safe and healthy in our workplaces.

3. “On The Basis of Sex” Includes Sexual Orientation and Gender Identity

In a landmark decision, Bostock v. Clayton County, the United States Supreme Court held that Title VII of the Civil Rights Act of 1964 protects employees against discrimination because of their sexual orientation or gender identity. We have been preparing clients for this expansion for many years and are grateful that it is now clear that the protections under Title VII extend to and include all employees regardless of their sexual orientation or gender identity.

4. Sexual Harassment in the Workplace Continues to Be Exposed and Addressed

Since the Harvey Weinstein story broke, we have lost count of the growing number of perpetrators of similar offenses, and 2020 has been no exception. Victims, both male and female, are speaking out, and many of the accused have either admitted the behavior or have simply apologized. We are grateful for the opportunity to continue training employers, managers, and supervisors on this topic and helping our clients create better places to work.

5. Profanity-Laced Tirades and Other Abusive Conduct in the Workplace Is Actually Not OK

The current NLRB has modified the standard for addressing offensive outbursts — including profane, racist, and sexually unacceptable remarks — in the course of protected activity under Section 7. In General Motors LLC, 14-CA-197985 369 NLRB No. 127 (2020), the NLRB replaced a variety of setting-specific standards — one for encounters with management (Atlantic Steel), another for exchanges between employees and postings on social media (a “totality of the circumstances” test), and a third for offensive statements and conduct on the picket line (Clear Pine Mouldings) — and instead followed the landmark Wright Line decision as the proper standard to apply. This move means employers no longer have to tolerate abusive and offensive conduct in the workplace or reinstate employees after they are discharged for deeply offensive conduct, and that’s something to be grateful for.

6. Winter Is Coming… But So Is a Vaccine

The federal government, through Operation Warp Speed, has been working since the pandemic started to make one or more COVID-19 vaccines available as soon as possible. As of today, there are three vaccine candidates in Phase 3 trials: Moderna, AstraZeneca and Pfizer.  Experts expect that a COVID-19 vaccine might be available in the spring or summer of 2021, and the FDA has pledged their commitment to expediting the development of the vaccines but not at the expense of science. So hopefully we will see some light at the end of this pandemic tunnel soon, and that is something we can all be grateful for. When a vaccine is available, check with your lawyers on the best way to encourage and/or require employees to be vaccinated (but that is a topic for another day).

7. All of Our Readers!

We are so grateful to all of our readers, followers and subscribers. We do this for each of you, and we appreciate hearing from you about what is helpful or when you send our articles along to someone else in your network. Continue to read, like, follow, and retweet us!

Happy Thanksgiving from Bradley’s Labor and Employment Insights blog team!