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Employer Do's and Don'ts in the Age of COVID-19
In the wake of the coronavirus pandemic, many employers are left uncertain as to what they can and cannot do these days in terms of their management of employees. Mindful of the mandates of (1) the Americans with Disabilities Act (ADA), which generally prohibits employers from making disability-related inquiries and requiring medical examinations of employees, and (2) statutes like California’s Fair Employment Housing Act (FEHA), which make it unlawful for an employer to discriminate against or treat an employee less favorably than others based on protected categories such as physical disability, business owners and management have been asking how they can lawfully address health-related matters in the current environment given the infection rate of COVID-19 and safety concerns for their other employees.
Michelman & Robinson provides answers to some of the most commonly posed questions.
Q. During the coronavirus outbreak, can I send employees home if they are showing symptoms of COVID-19?
A. Yes, if any of your employees become ill with, or begin to exhibit symptoms of, influenza or the like, you can require them to leave work and go home. Doing so is not a disability-related action under the ADA. By extension and applying this principle to current Center for Disease Control (CDC) guidance on the coronavirus, you can also lawfully send home an employee with COVID-19 or associated symptoms.
Q. If any of my employees say they are feeling unwell while on the job, or if employees call in sick, can I ask them if they are experiencing flu-like symptoms?
A. Yes, during this pandemic, you may ask employees who claim not to be feeling well at work, as well as those who call in sick, if they have symptoms such as fever, chills, cough, and/or sore throat. Such an inquiry is not disability-related under the ADA or FEHA and is justified during these times based on objective evidence that the coronavirus poses a direct threat to your workplace. As always, any information about your employees’ illnesses or symptoms must be kept confidential.
Q. Can I monitor my employees’ temperatures in the midst of the COVID-19 crisis?
A. Yes, because the CDC and state and local health authorities have acknowledged the community spread of COVID-19 is a direct threat, and have issued attendant precautions as a result, you may measure your employees' body temperatures for the sole purpose of evaluating risk that the employees’ presence poses to others in the workplace.
Note that if your business operates in California, you must provide notice to employees (and customers/clients/guests, where appropriate) pursuant to the California Consumer Privacy Act prior to measuring body temperature for purposes of COVID-19 mitigation. Also, measuring temperatures comes with its own set of risks, including challenges to the accuracy of the results, and the responsibility to ensure that any such monitoring is administered fairly.
Q. I have an employee that is about to return to work after traveling. Do I have to wait for her to develop symptoms before asking about possible COVID-19 exposure?
A. No, you can follow the guidance provided by the CDC and state and local public health authorities to the extent they recommend that you inquire about your employee’s travel (whether for business or pleasure) and potential exposure to the coronavirus prior to approving her return to the workplace.
Q. Even though most of my employees have no flu-like symptoms or signs of coronavirus infection, can I ask them to disclose whether they have any medical conditions that could make them particularly vulnerable to COVID-19?
A. No, you cannot. Disability-related inquiries—or requiring medical examinations—of employees that are not showing relevant symptoms during the pandemic is prohibited by the ADA.
Should any of your symptom-free employees voluntarily disclose that they have specific medical conditions or disabilities that put them at increased risk of complications due to the coronavirus, you must keep this information confidential. And in the event of such voluntary disclosure, you can ask those employees to describe the type of assistance they may need (e.g. telecommuting accommodations, leave for medical appointments, etc.) as a result of their vulnerabilities.
There is a caveat to the foregoing: if local, state, or federal public health officials determine that it is necessary to identify employees with medical conditions or disabilities that make them especially vulnerable to COVID-19, you may be able to ask disability-related questions—or require medical examinations—of your asymptomatic employees.
Q. Should I encourage my employees to work remotely?
A. Yes, telecommuting is an effective infection-control strategy and in line with many stay-at-home orders. Likewise, ADA-covered employers commonly use remote working arrangements as reasonable accommodations for employees, such as those who seek to reduce their chances of infection during a pandemic.
Q. Can I require my employees to wear personal protective equipment (e.g., face masks, gloves, or gowns) in an attempt to reduce the transmission of COVID-19?
A. Yes, you can require that your employees wear PPE during the pandemic. However, should an employee with a disability need any reasonable accommodations under the ADA or FEHA (for instance, non-latex gloves or a gown designed for an employee who uses a wheelchair), you must provide them, unless doing so would create an undue hardship.
Q. Once a safe and effective coronavirus vaccine becomes available, will I be able to compel my employees to be vaccinated?
A. Not necessarily. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him or her from taking it. Such an exemption would be tantamount to a reasonable accommodation on the part of the employer. Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him or her from taking a vaccine, the employer must also provide a reasonable accommodation, unless doing so would pose an undue hardship.
As such, the best an ADA-covered employer can do is to encourage employees to be vaccinated against COVID-19 once the vaccine is on the market.
Q. I have several employees that are coming to work because telecommuting is not an option in my business. With that said, I have a couple of employees that have been chronically absent from work. Can I ask them why they have not been able to come in?
A. Yes, asking why any given employee has not reported to work is not a disability-related inquiry prohibited by the ADA, FEHA, or similar law. You are always entitled to know the reason for an employee’s absence. Remember, however, that to the extent an employee reveals his or her absences to be related to an illness or other medical reasons, you must keep that information confidential, and provide reasonable accommodations consistent with applicable law.
Q. Must I continue to provide reasonable accommodations for employees with known disabilities unrelated to COVID-19?
A. Yes, your ADA and FEHA responsibilities to employees with disabilities continue during the current crisis. In fact, the only circumstances under which you could lawfully exclude a disabled employee from employment or an employment-related activity is where you can demonstrate that the employee in question poses a direct threat to the workforce (after accounting for reasonable accommodations, or if providing reasonable accommodations create an undue hardship and there are no feasible alternatives available).
In terms of reasonable accommodations, you must continue to provide them, as necessary, to your disabled employees who are telecommuting, just as you do when they work onsite. And again, in the event of undue hardship, you and your disabled employees should cooperate to identify alternative reasonable accommodations.
Q. What should I know about revealing information about any of my employees who test positive for COVID-19, or one who has come into contact with an infected person?
A. You must not identify any such employee by name, so as to ensure compliance with privacy laws. If an employee tests positive for or is suspected to have COVID-19, you will need to follow the most current local, state, or federal public health recommendations. This may include closing your worksite, deep cleaning, and permitting or requiring remote working arrangements. Understand that you are allowed to notify affected employees in a way that does not reveal the identity or personal health-related information of the employee in question. Toward that end, you could speak with impacted employees directly or send an email or other written communication as follows:
“[Employer] has learned that an employee at [office location] tested positive for COVID-19. The employee received positive results of this test on [date]. This email is to notify you that you have potentially been exposed to COVID-19, and you should contact your local public health department or medical professional for guidance and any possible actions to take based upon your individual circumstances.”
Q. The good news is that even during this crisis, my company is hiring. Can I screen applicants for symptoms of COVID-19 after making a conditional job offer?
A. Yes, you may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as you do so for all entering employees offered the same type of job. This is pursuant to an ADA rule that allows for post-offer (but not pre-offer) medical inquiries and exams to all applicants, whether or not the applicant has a disability.
Q. Along those same lines, can I take an applicant's temperature as part of a post-offer, pre-employment medical exam?
A. Yes, any medical exams are permitted after an employer has made a conditional offer of employment. Nonetheless, you should know that some people with COVID-19 are asymptomatic and do not have fever. In addition, be mindful of the associated risks with monitoring temperatures, as outlined above.
Q. Can I delay the start date of an applicant who has COVID-19 or symptoms associated with it?
A. Yes, you can and should. According to current CDC guidance, an individual who has COVID-19 or symptoms associated with it should not be in the workplace. Note that the ADA does not interfere with employers following recommendations of the CDC or public health authorities.
Q. Last question for now, may I withdraw a job offer if I need an applicant to start immediately, but he has COVID-19 or symptoms of it?
A. Yes, based on current CDC guidance, the applicant you reference cannot safely enter the workplace. Therefore, you may withdraw the job offer. Still, you will want to proceed with caution when taking any action that could be seen as adverse as a result of any disability or infection, including COVID-19, and obtain advice of counsel before proceeding.
This blog post is not offered, and should not be relied on, as legal advice. You should consult an attorney for advice in specific situations.