Conducting business in the U.S. Virgin Islands poses unique challenges not often encountered in the states, but also unique opportunities. This 20-part series offers tips for doing business in the U.S. Virgin Islands, covering a broad array of topics affecting employers. Part 11 of this series addresses the laws relevant to navigating inquiries into and disclosures of information related to COVID-19 in the workplace.
Tip 11: Navigating COVID-19 Inquiries and Disclosures
Although some employers have begun to consider whether they can require employees to be vaccinated against COVID-19, until a vaccine is approved and in widespread use, employers that have returned all or portions of their workforces to physical worksites may encounter challenges regarding the nature of information that may be requested concerning an employee’s COVID-19 status and the scope of information that may be disclosed to others in the workplace when an employee is confirmed to have contracted COVID-19.
From an employment law perspective, inquiries regarding COVID-19 in the workplace implicate two separate but important issues. First, under federal workplace anti-discrimination laws employers are obligated to treat similarly situated employees in the same manner without taking into account protected characteristics such as race, color, religion, national origin, sex, age, disability, or protected genetic information. Second, under the Americans with Disabilities Act, employers generally must protect as confidential any health-related information about employees and avoid impermissible inquiries about the medical condition of employees.
Distinguishing Permissible From Impermissible COVID-19 Inquiries
Recently, the U.S. Equal Employment Opportunity Commission (EEOC) updated its Technical Assistance Questions and Answers to incorporate additional guidelines concerning COVID-19 inquiries and disclosures. Although the applicability of the federal laws enforced by the EEOC is subject to an employer’s headcount, all employers in the U.S. Virgin Islands are subject to territorial anti-discrimination and anti-retaliation laws. As a result, familiarity with the general principles distinguishing permissible and impermissible COVID-19 inquiries may be useful for all employers.
The EEOC’s guidelines indicate that employers may ask all employees if they are experiencing symptoms of COVID-19, utilizing guidance from the U.S. Centers for Disease Control and Prevention (CDC), other public health authorities, and “reputable medical sources” to formulate such inquiries. The guidelines now indicate that an employer may ask a specific employee to respond to screening questions, a temperature check, or other screenings or testing only if the employer has a “reasonable belief based on objective evidence” that the individual may have COVID-19. The EEOC also has identified other permissible inquiries, including the following:
- Employers may seek information about where an employee has traveled, if CDC or applicable local guidelines recommend that individuals returning from specified locations self-isolate for specified periods. U.S. Virgin Islands Governor Albert Bryan, Jr.’s September 8, 2020, Sixteenth Supplemental Executive Order and Proclamation requires every person who enters the U.S. Virgin Islands to quarantine for 14 days, unless the individual presents a COVID-19 negative test result within 5 days of commencement of travel to the territory or obtains a negative COVID-19 test after arrival in the territory and prior to the expiration of the 14-day period. As the applicable territorial restrictions evolve, employers may wish to consider updating their workplace policies as warranted and notifying employees of any modifications.
- Employers may ask employees to identify the reason for any absences from work.
- Employers may ask employees if they have had contact with anyone diagnosed with COVID-19 or with anyone exhibiting symptoms of COVID-19, but employers with 15 or more employees, which accordingly are covered by the Genetic Information Nondiscrimination Act (GINA), may not ask employees to identify whether the contact is a family member. Because questions about close contacts that are limited to family members may omit information relevant to an individual’s potential exposure, all employers regardless of size may wish to consider formulating broader screening questions in a manner that is consistent with the objective of determining whether an employee has been exposed to COVID-19 due to close contact with affected individuals, regardless of the relationship between the employee and an affected individual.
Per the EEOC’s guidelines, employers generally may not ask employees who are teleworking and not anticipated to be physically present in the workplace whether they are experiencing COVID-19 symptoms. This is because such individuals would not pose a threat to employees in the workplace. However, if a teleworking employee physically interacts with customers or other coworkers in furtherance of performing any work-related activities during a telework period, such inquiries would be permissible.
Addressing Employee Refusals to Provide Information
The EEOC’s guidelines provide that an employer may bar an employee from entering or remaining at the worksite if the employee refuses to participate in the health screening process. Before resorting to such action, however, the employer may consider implementing other measures, including advising all employees that the employer will maintain the confidentiality of the information gathered and determining if an effective accommodation can be provided if the employee identifies a disability-related or religious reason for his or her refusal to participate in the screening process. Employers may want to adopt and communicate policies that clearly identify the potential consequences of refusing to participate in screening processes in advance of taking any disciplinary or other adverse action based upon such refusals.
Distinguishing Between Permissible and Impermissible Disclosures of COVID-19 Status
The EEOC has formulated different guidelines for COVID-19 disclosures depending upon the individual who communicates the information. On one hand, employees may disclose a coworker’s symptoms to a supervisor. Supervisors and management personnel, on the other hand, under the EEOC guidelines, must maintain the confidentiality of information about the COVID-19 status of the employee regardless of whether the supervisor obtained that information directly from the affected employee or it originated from the employee’s coworker. Accordingly, employers may consider proactively educating key personnel about their obligations concerning confidentiality, identifying protocols to limit the disclosure of paper or electronic records, and requiring supervisors or managers to communicate information about an employee’s COVID-19 status by utilizing the individual’s initials, identification number, or a pseudonym to ensure confidentiality.
An employer may inform employees of their potential exposure to a COVID-19–positive coworker in the workplace, as long as the employer does not disclose the identity of the COVID-19–positive individual. Per the EEOC’s guidelines, an employer may communicate by using descriptive information that does not identify the individual who has COVID-19. For example, an employer may disclose the department or division to which the employee is assigned or the floor or building where an employee works if the employer’s operations encompass multiple floors or buildings. The EEOC’s guidelines recognize that coworkers may be able to guess the identity of the COVID-19–positive employee, but supervisors and managers must nonetheless refrain from confirming identifying information. If an employee takes leave or utilizes a teleworking arrangement because the employee has a confirmed case or symptoms of COVID-19, supervisors or managers may disclose the employee’s absence from the worksite but not the medical reasons for the absence.
As the numbers of individuals testing positive for COVID-19 continue to increase, employers doing business in the U.S. Virgin Islands continue to navigate the pandemic’s implications for their operations. Although employers may collect and disclose information about the COVID-19 status of employees, continued attention to the development and implementation of policies and practices relating to the nature of inquiries and the scope and content of any disclosures can increase the likelihood that employees will be forthcoming and provide information necessary to assess and minimize the risks of COVID-19 in the workplace.
Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar programs. Ogletree Deakins will post additional tips for employers doing business in the U.S. Virgin Islands on the firm’s U.S. Virgin Islands blog.