On May 7, 2020, the Equal Employment Opportunity Commission (“EEOC”) updated its “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act” guidance (the “Guidance”) by providing a Technical Assistance Questions and Answers sheet (the “Q&A Sheet”). Together, the Guidance and Q&A Sheet help explain what employers can do during a pandemic, like COVID-19, that they cannot normally do under the Americans With Disabilities Act (“ADA”). As employers begin tackling the difficult but necessary task of planning to reopen and transitioning from “work from home” (“WFH”) back to physical offices in some capacity, the EEOC has issued instructions and practical tips which, if followed, presumably, will help insulate an employer from future liability. The Guidance and Q&A Sheet provide employers assistance with balancing workplace safety while continuing to remain compliant with the ADA. Generally, the ADA regulates (i) inquiries and examinations related to potential and current employees, (ii) whether an employee poses a “direct threat” to the workforce due to a medical condition, and (iii) how to provide “reasonable accommodation” to employees who ask for it. ZPP has provided an easy to follow set of questions and answers to assist employers in balancing federal laws and requirements with employee rights to both create a safe workplace, and limit liability in the COVID-19 landscape.
HIRING/ONBOARDING PROCESS
Can I screen employee applicants I am thinking of hiring for COVID-19 symptoms?
Yes, but. An employer can only screen applicants for COVID-19 or require medical exams after making a conditional offer of employment and then only if all onboarding employees in the same job category are subject to the same screening and examinations. Additionally, employers can take the temperatures of an applicant as part of a required medical exam or require the candidate to self-report regarding temperature. However, temperature checks have their limits: Current medical thinking is that asymptomatic carriers of COVID-19 may not present with a fever, and other symptoms may include a new cough, loss of appetite, and/or loss of smell or taste. Employers may also inquire of “conditional offer” applicants as to whether they have these other associated symptoms.
Can I refuse employment to a candidate who is in a higher risk category for contracting
COVID-19?
No. The Center for Disease Control and Prevention (“CDC”) has provided a list of risk factors that may make someone more susceptible to COVID-19. However, an employer may not unilaterally refuse employment, withdraw an offer, or delay an employee’s start just because a person is deemed to be at a higher risk of becoming infected with COVID-19. On the other hand, it is acceptable for an employer to generally discuss these issues with a potential hire and to postpone the employee’s start date or to allow WFH measures.
Can I withdraw an offer of employment or delay the start date of an applicant who tested positive for COVID-19, or has reported they have any associated symptoms?
Yes, but. Based on current CDC guidance, an employer may withdraw an offer if an employer needs the employee to start immediately, but such employee cannot safely enter into the workplace due to having COVID-19 or any associated symptoms. On the other hand, an employer may also choose to accommodate a delay in the start date for an employee who has tested positive for COVID-19 or has associated symptoms. Consistency is important here. Once an employer establishes a policy about immediate start dates, it must apply the policy uniformly to all employees who have the same or similar job description.
CURRENT EMPLOYEES
Can I require current employees to self-report temperatures on a daily basis during the COVID-19 pandemic?
Yes. Employers are allowed to require all employees to regularly be tested, or require each employee to self-test for temperature and/or self-report COVID-19-related symptoms, as long as the policy is consistently applied to all employees.
Can I require current employees as a condition of entering the workplace to wear personal protective equipment (“PPE”) either in the office and/or when using mass transit to get to work?
Yes. Employers may (and probably should) adopt “infection control practices” such as requiring PPE, including, but not limited to, latex gloves, facial masks and/or gowns, and that they be used in the physical workplace and in transit to the office. In addition, an employer may (and probably should) require regular handwashing, coughing and sneezing etiquette, social distancing protocols, and cleaning and disinfecting policies (i.e., wiping down doors, phones, desks, and commonly used areas) without violating the ADA. When pandemic planning, it is best practice to establish policies and protocols before returning to the workplace and give all employees advance notice of such policies. Employers should regularly update their protocols and policies as necessary to comply with federal EEOC and CDC guidelines, as well as state and local mandates and orders.
Another method of initiating “infection control practices” that has gained traction is requiring the use of contact-tracing applications. These applications are meant to minimize the exposure risk of contracting COVID-19. While the EEOC has not directly opined on this, the EEOC’s current guidance provides help in navigating the issue if an employer chooses this method. It is likely that the EEOC will approve of an employer’s mandatory and universal use of contact-tracing applications for employees as long as it is part of a coherent infection control policy, and no more intrusive than necessary.
However, employers should be aware that mandating the use of contact-tracing applications might implicate a variety of other laws, including, but not limited to, state privacy and civil rights laws, and state and federal constitutional laws. As this is new territory, employers should stay updated on guidance provided by the EEOC or Occupational Safety and Health Administration (“OSHA”), as well as state and local mandates and orders, to ensure compliance with any potential implications these laws might pose.
Can I inquire about an employee’s symptoms if the employee calls in sick or leaves early from work while feeling ill during the COVID-19 pandemic[1]?
Yes. Employers may inquire about an employee’s symptoms if that employee reports feeling unwell. The symptoms include fever, chills, shortness of breath, sore throat, and a new persistent cough. Other possible associated symptoms include loss of taste or smell, loss of appetite, nausea, and vomiting. It is important to note that as public health authorities learn more about COVID-19 in the coming weeks and months, the symptoms list may expand. Employers should continue to monitor guidance from the CDC, EEOC, and all public health authorities for the most current information regarding COVID-19 and its associated symptoms.
Can I require employees to stay home or leave the workplace if he or she has COVID-19 associated symptoms?
Yes. The ADA does not interfere with an employer’s ability to require its employees to stay home, WFH, and/or leave the workplace if they are experiencing COVID-19 symptoms.
Can I require employees to have a “doctor’s note” certifying fitness for duty during the COVID-19 pandemic?
Yes. As a practical matter, however, employers should be flexible in relying on local clinics and health care providers and other “first responders” in addition to classic medical doctors to provide such certification, as doctors may be incredibly busy during this time. Additionally, the employers should be flexible in the types of clearance forms they require, and an email may substitute for a hard-copy.
Can I prohibit a current employee who I know is at a higher risk of contracting COVID-19 from entering the workplace?
No. You cannot prohibit a current employee from returning to the physical workplace solely because you know he or she is at a higher risk to contract the virus due to his or her medical condition. However, if the employee’s disability poses a “direct threat” to his or her health that cannot be eliminated or reduced with a reasonable accommodation, then an employer may exclude that employee from returning to the workplace and have them work remotely from home if that is possible given job duties.
The ADA defines “direct threat” 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. The Guidance advises an employee to consider four (4) factors when assessing if 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. Moreover, an employer must determine if the threat can be reasonably accommodated (i.e., wearing masks, providing protective barriers, teleworking, etc.).
While the CDC has determined the COVID-19 pandemic meets the direct threat standard, the CDC will continue to revise its assessment of the severity and spread of the virus, which could affect whether a direct threat still exists. Employers should continue to stay updated on guidance from the CDC, as well as public health authorities when assessing whether an employee poses a direct threat.
REASONABLE ACCOMMODATION REQUIREMENTS DURING
A PANDEMIC
Can I refuse a reasonable accommodation during the COVID-19 pandemic?
No. Under the ADA, employers must provide reasonable accommodations for employees with disabilities (including having COVID-19) who ask for it unless it poses an undue hardship to the employer. Undue hardship occurs when the accommodation creates “significant difficulty or expense” for the employer. An employee’s conclusory statements of undue hardship unsupported by evidence are insufficient. If an accommodation would impose an undue hardship, the employer is not required to make the accommodation, but the employer is still required to consider any other reasonable accommodation that would not impose an undue hardship.
Can I request information from the employee who requested a reasonable accommodation about why an accommodation is needed, or if the condition is a covered disability during the COVID-19 pandemic?
Yes. If it is not obvious or already known, an employer may question, or request medical documentation from, an employee to determine whether the employee has a “disability” as defined by the ADA or whether the employee’s disability requires an accommodation (i.e., how the disability creates a limitation or how the requested accommodation will effectively address the limitation).
EMPLOYEE PERSONAL MEDICAL INFORMATION STORAGE
Can I store medical information obtained from employees through medical examinations or self-reporting during the COVID-19 pandemic?
Yes. An employer is required to treat all disability and medical information obtained from an employee, whether through medical examinations or self-reporting (i.e., symptoms and/or temperature), as confidential medical records. An employee medical record or log must be separately maintained in an electronic or physical file independent from an employee’s personnel file to ensure confidentiality. This includes any information provided by the employee that he or she has, or believes he or she has, COVID-19.
Can I share an employee’s medical information obtained through a medical examination or self-reporting during the COVID-19 pandemic?
Generally, no. But if an employer has learned an employee has COVID-19, it can disclose that information to a public health agency. Additionally, a temporary staffing agency or contractor that places an employee with an employer can notify the employer of the employee who has COVID-19, so the employer can take appropriate precautions to ensure workplace safety.
CONCLUSION
It is undeniable that the COVID-19 pandemic is causing rapid changes in the workplace, which in turn is causing uncertainty for businesses on how to lawfully and efficiently deal with such changes. However, when pandemic planning in the workplace, continued vigilance in guidance from agencies like the EEOC and CDC, as well as local/state governments and public health authorities, are imperative in order to ensure an environment where employees not only feel safe but also have their rights protected.
If you have any questions about how your business needs to address pandemic planning to return to the workplace or would like to discuss your legal matters further, please do not hesitate to contact our Senior Partner, Mitchell G. Mandell (mmandell@zplaw.com), or Associate, Michelle C. Malone (mmalone@zplaw.com).
[1] Outside of a pandemic, the ADA only permits employers to inquire about medical- and disability-related issues when it is “job-related” and “consistent with business necessity.” This occurs when the employer has a “reasonable belief, based on objective evidence” that the current employee’s “ability to perform essential job functions will be impaired by a medical condition” or if “an employee will pose a direct threat due to a medical condition.” Americans with Disabilities Act, 42 U.S.C. § 12112(6); U.S. Equal Employment Opportunity Commission, “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act” (March, 21, 2020).