On March 11, 2020, the coronavirus disease (COVID-19) was declared a pandemic. Business owners need not panic. It is not too late to implement proper planning and preparedness to mitigate risk and continue operations.
Now more than ever, employers must anticipate absenteeism, but must do so in full compliance with existing laws, including the Americans With Disabilities Act. To this end, on March 21, 2020, the Equal Employment Opportunity Commission issued an update titled “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act,” the full version of which can be found at: https://www.eeoc.gov/facts/pandemic_flu.html. In its update, the EEOC sets forth some valuable information concerning what employers can and cannot ask.
Direct Threat: Coronavirus, the Workplace and the ADA
Under the ADA, the “direct threat” concept figures prominently into employee protections. A “direct threat” is defined as “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.” 9 C.F.R. § 1630.2(r). This concept is material to the present situation because if an individual with a disability poses a direct threat despite reasonable accommodation, he or she is not protected by the nondiscrimination provisions of the ADA.
According to the EEOC, assessments of whether an employee poses a direct threat in the workplace must be based on objective, factual information, “not on subjective perceptions . . . [or] irrational fears” about a specific disability or disabilities. The EEOC’s regulations identify four factors to consider when determining whether an employee poses a direct threat: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that potential harm will occur; and (4) the imminence of the potential harm.
As the EEOC further explained:
Based on guidance of the CDC and public health authorities as of March 2020, the COVID-19 pandemic meets the direct threat standard. The CDC and public health authorities have acknowledged community spread of COVID-19 in the United States and have issued precautions to slow the spread, such as significant restrictions on public gatherings. In addition, numerous state and local authorities have issued closure orders for businesses, entertainment and sport venues, and schools in order to avoid bringing people together in close quarters due to the risk of contagion. These facts manifestly support a finding 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. At such time as the CDC and state/local public health authorities revise their assessment of the spread and severity of COVID-19, that could affect whether a direct threat still exists.
HELPFUL EMPLOYER DO’S AND DON’TS FROM THE EEOC
May an employer encourage employees to telework (i.e., work from an alternative location such as home) as an infection-control strategy during a pandemic?
Yes. Telework is an effective infection-control strategy that is also familiar to ADA-covered employers as a reasonable accommodation. Employees with disabilities that put them at high risk for complications of pandemic influenza may request telework as a reasonable accommodation to reduce their chances of infection during a pandemic.
During a pandemic, may an employer require its employees to adopt infection-control practices, such as regular hand washing, at the workplace?
Yes. Requiring infection control practices, such as regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal, does not implicate the ADA.
During a pandemic, may an employer require its employees to wear personal protective equipment (e.g., face masks, gloves, or gowns) designed to reduce the transmission of pandemic infection?
Yes. An employer may require employees to wear personal protective equipment during a pandemic. However, where an employee with a disability needs a related reasonable accommodation under the ADA (e.g., non-latex gloves, or gowns designed for individuals who use wheelchairs), the employer should provide these, absent undue hardship.
When can an Employer Ask Disability-Related Questions or Seek Medical Examinations?
An employer may not make a disability-related inquiry or require a medical examinations of a current employee, unless it is both job-related and consistent with business necessity. 42 U.S.C. § 12112 and 29 C.F.R. § 1630.14.
An employer may make a disability-related inquiry or require a medical examination if, before making a medical inquiry, the employer reasonably and objectively believes that an employee’s medical condition either: impairs the employee’s ability to perform essential job functions or poses a direct threat.
Note, the employer’s reasonable belief must be based on objective evidence that is known to the employer or reasonably available.
Can an ADA-covered employer send employees home if they display influenza-like symptoms during a pandemic?
Yes. The CDC states that employees who become ill with symptoms of influenza-like illness at work during a pandemic should leave the workplace. Per the EEOC, advising such workers to go home is not a disability-related action if the illness is akin to seasonal influenza or the 2009 spring/summer H1N1 virus and, the action would be permitted under the ADA if the illness were serious enough to pose a direct threat. Applying this principle to current CDC guidance on COVID-19, this means an employer can send home an employee with COVID-19 or symptoms associated with it.
During a pandemic, how much information may an ADA-covered employer request from employees who report feeling ill at work or who call in sick?
ADA-covered employers may ask such employees if they are experiencing influenza-like symptoms, such as fever or chills and a cough or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.
If pandemic influenza is like seasonal influenza or spring/summer 2009 H1N1, these inquiries are not disability-related. If pandemic influenza becomes severe, the inquiries, even if disability-related, are justified by a reasonable belief based on objective evidence that the severe form of pandemic influenza poses a direct threat.
Applying this principle to current CDC guidance on COVID-19, employers may ask employees who report feeling ill at work, or who call in sick, questions about their symptoms to determine if they have or may have COVID-19. Currently these symptoms include, for example, fever, chills, cough, shortness of breath, or sore throat.
When an employee returns from travel during a pandemic, must an employer wait until the employee develops influenza symptoms to ask questions about exposure to pandemic influenza during the trip?
No. These would not be disability-related inquiries. If the CDC or state or local public health officials recommend that people who visit specified locations remain at home for several days until it is clear they do not have pandemic influenza symptoms, an employer may ask whether employees are returning from these locations, even if the travel was personal. with respect to the current COVID-19 pandemic, employers may follow the advice of the CDC and state/local public health authorities regarding information needed to permit an employee’s return to the workplace after visiting a specified location, whether for business or personal reasons.
During a pandemic, may an employer ask an employee why he or she has been absent from work if the employer suspects it is for a medical reason?
Yes. Asking why an individual did not report to work is not a disability-related inquiry. An employer is always entitled to know why an employee has not reported for work.
Conclusion
Employment-related decisions will certainly be further complicated by the Coronavirus Disease 2019 (COVID-19) going forward. If you want to learn more about our services, including general counsel services, don’t hesitate to contact us or learn more about the Firm. Above all, we wish everyone health and safety.
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