MARLBOROUGH, Mass.–The coronavirus pandemic has raised a host of questions for credit unions related to their role as employers.
The Cooperative Credit Union Association, which serves CUs in Massachusetts, New Hampshire, Rhode Island and Delaware, is offering some answers on three common HR-related questions from credit unions.
The CCUA noted, however, the “appropriate approach for each credit union will vary depending on the nature of the work, location(s), and size amongst other considerations.”
Among the questions on which it has offered some guidance:
Can employers require employees to disclose information about their health status and symptoms, travel plans and history, non-work activities and possible risk of exposure to COVID-19?
“Due to the risk of intruding on privacy rights and being accused of forms of discrimination, it is not recommended that an employer require an employee to disclose health conditions, symptoms they are experiencing, travel plans or history, non-work activities, or possible risk of exposure to COVID-19,” the CCUA said. “However, employers can accomplish almost as much by expressing to all employees that they are concerned about the spread of COVID-19 amongst the workforce and their families, and urging all employees to: (1) abide by all local, state, and federal public health orders; (2) observe all recommended health practices, including frequent and thorough hand washing, social distancing, and staying home when they feel ill; and (3) self-quarantine and notify their employer when they test positive for COVID-19, have been directly exposed to someone who tested positive, and/or are subject to a health care provider’s order to self-quarantine.”
Can an employer ask an employee to go somewhere or do something that might expose them to the virus? Can an employee refuse?
“The Occupational Safety and Health Administration (OSHA) permits an employee to refuse a request from his or her employer if the employee reasonably believes that he or she is in imminent danger,” the CCUA said. “Imminent danger requires ‘a threat of death or serious physical harm,’ and the ‘threat must be immediate or imminent,’ meaning that the employee believes that death or serious physical harm could occur within a short time. Because of the significant health hazards associated with this disease, it is possible that an employee could refuse to work because he believes that his/her health is in imminent danger at the workplace due to the actual presence or reasonable probability of the disease at the workplace.”
Can an employer order its employees to get tested?
“Yes, if the employer reasonably believes that the employee has symptoms of COVID-19,” said the CCUA analysis. “The Americans with Disabilities Act generally prohibits an employer from requiring medical examinations of employees, but provides an exception where an employer reasonably believes that the employee may pose a “direct threat” to the health and safety of others. A direct threat is a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation. The Equal Employment Opportunity Commission has advised that, ‘a significant risk of substantial harm would be posed by having someone with COVID-19, or symptoms of it, present in the workplace at the current time.’ An assessment of whether a particular employee poses a direct threat requires an individualized assessment be based on objective, factual information. Relevant factors would include what symptoms the employee is exhibiting and whether the employee has any known exposure to the virus. An employer should also consider if the risk can be mitigated by permitting the employee to work remotely. An employer that reasonably believes, based on an individualized assessment, that an employee has symptoms of COVID-19 can require that employee to undergo medical testing to determine whether the employee, in fact, is infected.”
A Final Note
The CCUA added, “Credit unions as employers should listen to employee concerns and, if they are genuine, explore alternative working arrangements with them.”