Employers can no longer take a wait-and-see approach to the coronavirus. It’s not time to panic … but it’s definitely time to prepare.
However, in your efforts to keep employees healthy, you may soon face several tricky questions … Can you require workers to stay home if they seem sick? .., Can you require extra medical tests before hiring … Can you check their temperatures?
Many of those issues are covered under the federal Americans with Disabilities Act (ADA). The EEOC last week issued employer guidance on how employers should apply the ADA in this new environment. Here are six of the most important answers:
1. AT-RISK STAFF: Can we ask employees if they have any chronic health conditions that could make them more susceptible to influenza or coronavirus?
No. Asking an employee to disclose a chronic condition or compromised immune system would be considered an unlawful “disability-related inquiry” because the response is likely to disclose the existence of the person’s disability.The ADA doesn’t allow such inquiries unless there’s evidence that pandemic symptoms will cause a direct threat. Such evidence is absent before a pandemic is officially identified.
2. MEDICAL INQUIRIES: How much information can we request from employees who call in sick or report to work feeling ill?
You can ask such employees if they are experiencing influenza-like symptoms, such as fever or chills and a cough or sore throat. Make sure to keep all information about employee illnesses as a confidential medical record in compliance with the ADA. If coronavirus is like seasonal influenza, these questions are not disability-related inquiries. However, if the coronavirus becomes more severe, the types of inquiries (even if disability-related) are justified by a reasonable belief based on objective evidence that the severe form of coronavirus poses a direct threat to the workplace or them employee himself or herself.
3. WORKING FROM HOME: During a pandemic, can we send employees home (and/or require them to stay home) if they display influenza-like symptoms?
Yes. The CDC says employees who become ill with symptoms of influenza-like illness at work during a pandemic should leave the workplace. Advisingsuch workers to go home is not a disability-related action if the illness is akin to seasonal influenza. Also, the action would be permitted under the ADA if the illness were serious enough to pose a direct threat to other employees, customers or the employee him/herself.
4. TAKING TEMPERATURES: Can we take employees’ temperatures to determine whether they have a fever?
The basic answer: only if there’s an official pandemic declared. Typically, measuring an employee’s body temperature would be considered a medical examination. However, if the CDC or a state or local health authority proclaims that an official pandemic has spread in the area, then employers are allowed to measure employees’ body temperature. Still, it is noted that some people with the flu do not have a fever. As of now, most agree that checking all employees’ temperatures is overreaching.
5. MASKS, GLOVES: During a pandemic, can we require employees to wear personal protective equipment (face masks, gloves) designed to reduce the virus’ spread?
Yes, you can require this if a pandemic is declared. Note that if an employee with a disability needs a reasonable accommodation under the ADA (e.g., non-latex gloves), you would need to provide these things, as long as doing so doesn’t cause an undue hardship.
6. FITNESS-FOR-DUTY TESTS: If an employee has been away from work during a pandemic, does the ADA allow employers to require doctors’ notes certifying their fitness for duty?
Yes. Such inquiries are permitted under the ADA either because they would not be disability-related or, if the pandemic influenza was truly severe, they would be justified under the ADA standards for disability-related inquiries of employees.
Now is the time to get up to speed on your coronavirus compliance responsibilities. The Labor & Employment Law Advanced Practices (LEAP) conference offers answers to all of your compliance questions on this and every other employment law topic.