The novel coronavirus COVID-19 brings up a host of concerns for employers as you focus on keeping employees safe and business on track. Not to be forgotten are the laws that may be implicated as the situation develops.
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ADA Considerations
Under the Americans with Disabilities Act (ADA), an employer’s ability to make disability-related inquiries or require medical examinations is analyzed in three stages:
Preoffer. At this stage, the ADA prohibits all disability-related inquiries and medical exams, even if they are related to the job.
Postoffer. At this stage (after an applicant is given a conditional job offer but before starting work), an employer may make disability-related inquiries and conduct medical exams, regardless of whether they are related to the job, as long as it does so for all entering employees in the same job category.
Employment. After employment begins, an employer may make disability-related inquiries and require medical exams only if they are job-related and consistent with business necessity, which includes circumstances where an employee poses a direct threat because of a medical condition.
A direct threat involves a significant risk of substantial harm to the health or safety of the individual or others in the workplace, which can’t be eliminated by reasonable accommodation. Whether a virus like COVID-19 rises to the level of a direct threat depends on the severity of the illness, which is to be gauged by the latest information from the U.S. Centers for Disease Control and Prevention (CDC) or other governmental health assessments.
It’s worth noting that the ADA requires reasonable accommodations for individuals with disabilities during a pandemic—and the World Health Organization announced on March 11, 2020, that it considered the coronavirus a global pandemic.
According to the Equal Employment Opportunity Commission (EEOC), when preparing for a possible pandemic, you cannot ask employees to disclose if they have a compromised immune system or chronic health condition that may make them more susceptible to the virus before a direct threat (i.e., a pandemic) occurs.
Instead, to determine who is most likely to be absent during a pandemic, employers can issue nondisability-related yes-or-no inquiries to employees to determine nonmedical reasons for absences, e.g., those absences related to child care, care for other dependents, and reliance on public transportation.
Also, you can require newly hired employees to have a postoffer medical exam to determine their health status, provided you implement the same requirement for all employees in the same job category.
Actions Acceptable During a Pandemic
During a pandemic, employers can:
- Send employees home if they display coronavirus-like symptoms (fever, cough, shortness of breath).
- Ask employees if they are experiencing symptoms, provided the information is kept confidential.
- Measure an employee’s temperature if the employee is displaying severe symptoms or if the pandemic is widespread in the community where the individual becomes ill. Note that in nonpandemic situations, measuring temperature constitutes a medical exam.
- Require, based on CDC or other public health recommendations, that employees who recently traveled to certain locations remain home for several days after to be sure they’re clear of symptoms before returning to work. The CDC has said COVID-19 symptoms can present between 2 and 14 days after a person comes in contact with the virus.
- Encourage or require employees to telework as an infection-control strategy. Telework also may be a reasonable accommodation.
- Require employees to wear appropriate personal protective equipment (PPE), such as gloves, to reduce transmission of the virus provided that any employee who needs an accommodation for such PPE receives the accommodation, absent undue hardship.
Employers cannot require employees to take a COVID-19 vaccine if one becomes available, but the use of any available vaccines can be encouraged.
Employers also can require certification of the illness by the employee’s healthcare provider, as well as certification that the individual is medically able to return to work in accordance with applicable policies and the ADA.
FMLA Considerations
Absences resulting from an employee’s serious health condition are protected under the Family and Medical Leave Act (FMLA), which entitles an eligible employee to take up to 12 weeks of unpaid leave.
COVID-19 likely would constitute a serious health condition that is protected by the FMLA if an employee or family member is hospitalized because of the condition or otherwise incapacitated for more than 3 consecutive calendar days and receives continuing treatment by a healthcare provider as defined in the regulations.
You can require a healthcare provider’s certification of the illness as well as certification that the employee is medically able to return to work.
Remember, the Families First Coronavirus Response Act (FFCRA)—a measure that provides both paid sick leave and paid family and medical leave for workers affected by the COVID-19 pandemic—recently went into effect.
The rule, which will be in effect through December 31, outlines how both workers and employers will benefit from the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act, both part of the FFCRA. To learn more about the FFCRA, click here.
Bottom Line
Although COVID-19 presents many challenges, employers must familiarize themselves with the laws the disease is likely to trigger and seek legal assistance when questions arise.
Lisa M. Koblin is an attorney with Saul Ewing Arnstein & Lehr LLP in Philadelphia, Pennsylvania. You can reach her at Lisa.Koblin@saul.com.