|Even in the face of a pandemic, employers must pay attention to and comply with federal and state employment laws while making decisions that impact the health and well-being of their workforce. While this article is not legal advice, it is intended to share information and best practices for employers. For specific situations affecting employees, employers are urged to consult with their own employment law counsel.
It is important to recognize that the situation with COVID-19 is fluid and constantly changing. As the conditions change and evolve, so will the guidance and orders from the federal, state, and local governments. Accordingly, employer obligations under these laws will continue to evolve. It is imperative to keep abreast of changes and developments.
ADA Considerations for COVID-19:
Short-term illnesses like the flu and COVID-19, absent complications, are generally not severe enough to constitute “disabilities” within the meaning of the Americans with Disabilities Act (ADA). Consequently, employment inquiries and decisions based on employees’ COVID-19 status are generally appropriate. The Equal Employment Opportunity Commission (EEOC) has already cited its 2009 pandemic H1N1 flu guidance as applicable to the COVID-19 outbreak, which states that asking about symptoms and telling symptomatic workers to go home is generally permitted because one of two things will be true: (a) doing so in response to COVID-19 symptoms that are merely akin to seasonal influenza is not a “disability-related action” and therefore is not prohibited under the ADA, or (b) doing so in response to more severe COVID-19 symptoms is appropriate even if a “disability” is present, as the illness is serious enough to pose a direct threat to employees or their coworkers. Disability discrimination under the ADA is not implicated under either scenario.
However, the ADA can be implicated in other ways. First, the ADA regulates employers’ disability-related inquiries. So, for example, asking employees if they have compromised immune systems or other chronic vulnerabilities, as opposed to simply asking about their flu-like symptoms, would be a prohibited disability-related inquiry.
Similarly, the ADA generally prohibits random “medical examinations” of employees. Medical exams may be required only if they are job-related and consistent with business necessity. In order for the inquiry to be job-related and consistent with business necessity, an employer must have a reasonable belief, based on objective evidence, that an employee’s ability to perform essential job functions are impaired by a medical condition or that an employee poses a “direct threat.” A direct threat is defined as a significant risk of substantial harm to the safety or health of the employee or others that cannot be eliminated or reduced by a reasonable accommodation.
Finally, any medical information about employees must be kept confidential and maintained by the employer in separate medical files.
With these basics, in mind, best ADA practices for employers include:
· Sending Employees Home. Employees can be sent home if they are displaying COVID-19 symptoms during the pandemic. The Centers for Disease Control and Prevention (CDC) has already provided guidance that employees who become ill or show symptoms during a pandemic should leave the workplace. This action would likely be permitted under the ADA as the employee could pose a direct threat to themselves or others, and this is a best practice for employers during this extraordinary time. Additionally, it is likely proper to send home other employees who have come in close contact with the ill employee.
· Asking Employees if they Have the Virus. Employers also wish to know how much information can be requested from employees who report feeling ill at work or who call in sick. The CDC states that employees who exhibit symptoms of influenza-like illness at work during a pandemic should leave the workplace, and it is appropriate to inquire about flu symptoms. However, except as needed to ensure the safety of other workers, employers should not disclose the name or other private information of any employee who has tested positive or who has reported a COVID-19 diagnosis, even if it is readily apparent to others in the workplace.
· Taking Employees’ Temperatures. Employers may wish to take an employee’s temperature to determine whether the employee has a fever. Generally, under the ADA, measuring random employees’ body temperature is considered a prohibited medical examination. However, if COVID-19 becomes widespread in the community, as objectively determined by state or local health authorities or the CDC, the EEOC has indicated that taking an asymptomatic employee’s temperature at work would be sufficiently job-related and consistent with business necessity. In any event, employers should also keep in mind that COVID-19 may be present without the employee showing symptoms, including an elevated temperature.
· Travel-Related Inquiries. When an employee returns from personal travel during this pandemic, an employer can, and likely should, ask questions about the employee’s potential exposure during the trip. These are not disability-related inquiries, so long as they are not based on race or national origin, which would be prohibited by Title VII of the Civil Rights Act of 1964. Otherwise, an employer generally may ask such questions, even if the travel is personal, including whether the employee is returning from specific locations that have been identified as “hot-spots” for COVID-19, and whether the employee was exposed to anyone experiencing symptoms of the virus. The employer may also wish to ask whether the employee drove or flew to and from the destination, or whether the employee traveled on a cruise. If an employer has a reasonable belief that an employee has traveled to a high-risk country or area and has acquired COVID-19 or been exposed, the employer may require that the employee not return to work for 14 days (per CDC recommendations) or may send the person home.
· Working Remotely. As a best practice during the pandemic, employers are generally able to encourage or require employees to work from home or remotely as an infection-control strategy. The concept of allowing and encouraging sick employees to work remotely is well-accepted as a reasonable accommodation under the ADA. Employees who have disabilities that make them particularly susceptible to COVID-19 should likewise be offered the option of working from home as a reasonable accommodation to reduce their risk of contracting COVID-19 at the workplace.
· Requiring PPE or Hygiene Practices. Additional best practices include encouraging or requiring employees to implement infection-control practices such as handwashing and coughing and sneezing etiquette. None of these requirements implicate the ADA. Additionally, employers may require employees to wear personal protective equipment (PPE) during the pandemic, such as gloves or facemasks. However, facemasks, as they relate to COVID-19, are only suggested by the CDC as a means to reduce the spread of the virus by those who are already sick or for those actively engaged in treating others for COVID-19 infections. Healthy individuals will not significantly reduce their risk of contracting the virus by wearing a facemask. Moreover, as this PPE has not been deemed necessary by the CDC or OSHA to protect health and safety at this time, employers have discretion as to whether to allow their usage.
· Fitness for Duty. An employee who is out sick with COVID-19 may be required to provide a doctor’s note, submit to a medical exam, or remain symptom-free for a specified amount of time (currently 14 days, per CDC recommendations) before returning to work.
FMLA Considerations for COVID-19:
Employers must give due consideration to the Family and Medical Leave Act (FMLA) when making determinations about how to deal with employees with COVID-19 or suspected COVID-19. COVID-19 can be a “serious health condition” if the normal requirements are met under the FMLA – i.e., if the employee or a family member has more than three days of incapacity, and either (a) has seen a health care provider twice, or (b) has seen a health care provider once and has been prescribed a continuing course of treatment, such as prescription medication. An employee who claims to have COVID-19 but who does not have the corresponding medical certification from his or her treating physician may be provided provisional FMLA leave until a certification is received. Employers should comply with all standard requirements of the FMLA once the employer has reason to believe an employee qualifies for FMLA-protected leave.
The Labor and Employment lawyers at Coolidge Wall are monitoring the CDC website, legislative developments, and other sources to keep track of this evolving situation. Should you have specific questions, please contact us.
Marc L. Fleischauer
David P. Pierce
Benjamin A. Mazer