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EMPLOYMENT LAW UPDATE

COVID, opioids and payroll taxes on HR radar

By Mike O’Brien bio

Applicants, testing, and screening

The EEOC has said you cannot test applicants for COVID-19 until after a conditional job offer. Fine, makes sense. What about taking temperatures? You can take a temperature of visitors to your business/office to make sure they are not bringing COVID-19 with them. In fact, you may have an OSHA duty to do so to protect your workers from the pandemic. What about applicants visiting your office to apply to interview—can you subject them to the same temperature screening as all other visitors? Logic would say yes; but the EEOC guidance says no, you can only take an applicant’s temperature after a conditional job offer. Yet, a visiting applicant with COVID-19 could turn your office into a virus hot spot, thus attracting the ire of OSHA (and the news media and the public)! What to do? Apart from writing to the EEOC and expressing concern that their guidance about potentially-viral applicants puts you at risk from OSHA, the best approach probably is just not to allow applicants to visit your business in person. Instead have them apply and interview remotely, virtually, online—you get the picture—and then take their temperature after a job offer.

EEOC publishes opioid guidance

On Aug. 5, 2020, the Equal Employment Opportunity Commission (EEOC) issued a Press Release about its publication of two technical assistance documents on opioid addiction in the workplace. The first technical assistance document, titled Use of Codeine, Oxycodone, and Other Opioids: Information for Employees, makes clear that while “current illegal drug use is not a covered disability,” “individuals who are lawfully using opioid medication, are in treatment for opioid addiction and are receiving Medication Assisted Treatment (MAT), or have recovered from their addiction, are protected from disability discrimination.” The technical assistance document also “answers questions about reasonable accommodations that may be available to employees who currently legally use opioids, as well as what to do if an employer has concerns about the employee’s ability to safely perform his or her job.”

The second technical assistance document, titled How Health Care Providers Can Help Current and Former Patients Who Have Used Opioids Stay Employed, is intended to educate health care providers “about their patients’ legal rights in the workplace.” The EEOC observes that health care providers “are often key participants in the interactive process between employers and workers as employers seek to understand the employee’s condition and potential need for reasonable accommodation. In addition to describing the coverage limits under the ADA, the document provides guidance to health care workers seeking to provide documentation of covered disabilities on behalf of their patients.”

President Trump issues executive order extending unemployment assistance and providing payroll tax deferrals

The U.S. Treasury still has yet to tell employers how to handle President Trump’s order delaying the due date for employee payroll taxes, leaving employers in limbo. Some employers are shying away from the payroll tax deferral because the taxes would ultimately have to be paid unless Congress acts to forgive the liability. Several large employers, such as Walmart and Proctor & Gamble Co., have said that they need more details from the IRS. Payroll deferral start date is Sept. 1.

 


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