|Over the past week, the number of reported Coronavirus cases passed 125,000 globally and 1,300 in the U.S. As a public health emergency of international concern, employers in the United States are actively preparing their workplaces and business operations for the potential impact of the Coronavirus. Fortunately, the Equal Employment Opportunity Commission (“EEOC”), the Department of Labor (“DOL”), the Occupational Safety and Health Administration (“OSHA”), and the Center for Disease Control (“CDC”) have issued guidance for employers on Coronavirus and pandemic planning. |
1. Equal Employment Opportunity Commission. The EEOC, the federal agency responsible for enforcing anti-discrimination laws, recently published a press release on the Coronavirus as it relates to complying with the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act. The ADA and Rehabilitation Act, which prohibit disability discrimination in employment, are relevant to pandemic preparation in at least three major ways. First, the ADA and Rehabilitation Act regulate when an employer may make disability-related inquires or medical examinations of applicants and employees, including those who do not have disabilities. Second, these laws prohibit covered employers from excluding individuals with disabilities from the workplace for health or safety reasons unless they pose a direct threat (i.e., a significant risk of substantial harm even with reasonable accommodation). Finally, the ADA and Rehabilitation Act require that employers provide reasonable accommodations to individuals with disabilities, unless an undue hardship would result.
Consistent with these workplace protections and rules, the EEOC’s Guidance, entitled “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act,” was published in 2009 following the H1N1 pandemic (“Guidance”). This Guidance can help employers implement strategies to navigate the impact of Coronavirus while staying in compliance with the ADA and Rehabilitation Act. The EEOC’s Guidance identifies relevant established ADA and Rehabilitation Act principles and answers questions frequently asked about the workplace during Coronavirus-like events.
Key takeaways from the EEOC’s Guidance include:
Once a Pandemic has been Identified by the WHO and the CDC
Yes. 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. Additionally, the action would be permitted under the ADA if the illness were serious enough to pose a direct threat.
- May an ADA-covered employer send employees home if they display influenza-like symptoms?
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.
- How much information may an ADA-covered employer request from employees who report feeling ill at work or who call in sick?
Generally, measuring an employee’s body temperature is a medical examination, which is not permitted unless job-related and consistent with business necessity. However, if pandemic influenza symptoms before more severe than the seasonal flu or the H1N1 virus in the spring/summer of 2009, or if pandemic influenza becomes widespread in the community as assessed by state or local health authorities or the CDC, then employers may measure employees’ body temperature, as these medical examination would be justified by a reasonable belief based on objective evidence that the severe form of pandemic influenza poses a direct threat. However, employers should be aware that some individuals will be carriers of the coronavirus will not have a fever.
- During a pandemic, may an employer take its employees’ temperatures to determine whether they have a fever?
Yes. Telework is an effective infection-control strategy that is also familiar to ADA-covered employers as a reasonable accommodation. In addition, 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.
- May an employer encourage employees to telework (i.e., work from an alternative location such as home) as an infection-control strategy?
No. If pandemic influenza is like seasonal influenza or the H1N1 virus in the spring/summer of 2009, making disability-related inquiries or requiring medical examinations of employees without symptoms is prohibited by the ADA. However, under these conditions, employers should allow employees who experience flu-like symptoms to stay at home, which will benefit all employees including those who may be at increased risk of developing complications.
- During a pandemic, may an ADA-covered employer ask employees who do not have influenza symptoms to disclose whether they have a medical condition that the CDC says could make them especially vulnerable to influenza complications?
If an employee voluntarily discloses (without a disability-related inquiry) that he or she has a specific medical condition or disability that puts him or her at increased risk of influenza complications, the employer must keep this information confidential. The employer may ask him/her to describe the type of assistance he/she thinks will be needed (e.g., telework or leave for a medical appointment). Employers should not assume that all disabilities increase the risk of influenza complications. Many disabilities do not increase this risk (e.g., vision or mobility disabilities).
If an influenza pandemic becomes more severe or serious according to the assessment of local, state or federal public health officials, ADA-covered employers may have sufficient objective information from public health advisories to reasonably conclude that employees will face a direct threat if they contract pandemic influenza. Only in this circumstance may ADA-covered employers make disability-related inquiries or require medical examinations of asymptomatic employees to identify those at higher risk of influenza complications.
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.
- May an employer require its employees to adopt infection-control practices, such as regular hand washing, at the workplace?
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.
- 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?
After a Pandemic
Yes. Such inquiries are permitted under the ADA either because they would not be disability-related or, if the pandemic influenza were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees. As a practical matter, however, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus.
- May an ADA-covered employer require employees who have been away from the workplace during a pandemic to provide a doctor’s note certifying fitness to return to work?
Importantly, the EEOC’s press release stated that, while the ADA and Rehabilitation Act rules continue to apply during a pandemic, they do not interfere with or prevent employers from following CDC guidelines and its recommended strategies for employers addressing Coronavirus.
2. Department of Labor. The DOL oversees the enforcement of many federal labor and employment laws, including the Fair Labor Standards Act (“FLSA”) and Family Medical Leave Act (“FMLA”). The Wage and Hour Division of the DOL posted help guidance on the FLSA, which answers many questions on staying compliant with the federal wage and hour in the mist of the coronavirus pandemic. The general rule under the FLSA is employers are only required to pay non-exempt employees for hours worked. If employers are forced to close their operations due to coronavirus, they are not required to pay non-exempt employees impacted by that decision. Non-exempt employees should be allowed to use any applicable paid leave.
On the other hand, exempt employees must receive their full salary in any week in which they perform work, except in the case of seven permissible deductions. If unable to work from home, employers may require exempt employees to take applicable paid time off due to a coronavirus-related closure for both full- or part-day absences. Exempt employees do not have to be paid for any week in which no work is performed.
The DOL and other federal administrative agencies have confirmed that, where possible, employers can either encourage or require employees to telework as an infection control or prevention strategy. Additionally, employers may have different obligations under applicable state or local law.
The FMLA provides eligible employees with 12 weeks of job-protected, unpaid leave for specified family and medical reasons, including the “serious health condition” of an employee or his/her immediate family member. With respect to coronavirus, the DOL has issued relevant guidance on when pandemic flu may be considered a serious health condition under the FMLA. The DOL’s guidance states that FMLA coverage may include pandemic flu where complications arise that cause a “serious health condition” as defined by the FMLA. In part, a “serious health condition” may include (1) conditions requiring in-patient care (i.e., overnight stay in a hospital, hospice, or residential medical care facility) and (2) temporary, nonchronic (acute) condition that result in a period of incapacity lasting more than three full, consecutive calendar days, provided there is: (i) one in-person visit to a healthcare provider within seven calendar days of onset of incapacity; and (ii) either at the first visit the healthcare provider prescribes a regimen of continuing treatment or there is a second in-person visit to a healthcare provider within 30 days of onset of incapacity. Therefore, if an employee or an immediate family member contracts coronavirus under circumstances which qualify as a “serious health condition,” the employee may be entitled to FMLA-leave to care for himself or to care for a covered family member (provided the employer is a covered entity and the employee otherwise meets the eligibility requirements).
Conversely, leave taken by an employee for the purpose of avoiding exposure to coronavirus would not be protected under the FMLA. There is currently no federal law covering employees who take off from work to care for healthy children. Employers are not required by federal law to provide leave to employees caring for dependents that have been dismissed from school or child care. However, this may be required under applicable state or local law.
Given the potential for significant illness under some pandemic influenza scenarios, the DOL recommends that employers review their leave policies and consider providing increased flexibility to their employees and their families during this time. The DOL cautions employees, however, to be mindful of their obligations under federal equal employment opportunity laws.
3. Occupational Safety and Health Administration. OSHA’s Guidance on Preparing Workplaces for COVID-19 covers a variety of workplace safety standards, including the need to use personal protective equipment (such as gloves, eye and face protection, and respiratory protection) and OSHA’s general duty clause, which requires employers to furnish to each worker “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” The general duty clause may require an employer to prevent an employee from coming to work if the employer knows the employee has been exposed to the virus (i.e., household member diagnosed or recently returned from travel in certain areas).
Importantly, OSHA recordkeeping requirements mandate covered employers record certain work-related injuries and illnesses. While the common cold and flu are exempt from these recording obligations, the coronavirus is a recordable illness when a worker is infected on the job. It may be difficult to determine if a pandemic virus infection is work-related. Employers must record coronavirus as a work-related illness if the recording criteria are met—that is: (1) an employee is exposed to coronavirus in the work environment; (2) the employee is diagnosed with coronavirus; and (3) the employee receives “medical treatment” or the case involves death, days away from work or restricted work or transfer to another job.
4. Center for Disease Control. In its interim guidance for employers, the CDC recommends the following steps to help prevent workplace exposures to acute respiratory illnesses, such as coronavirus:
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- Emphasize staying home when sick, respiratory etiquette, and hand hygiene by all employees. The CDC guidelines include links to posters an employer can place in the workplace.
- Perform routine environmental cleaning, stressing sanitization of frequently touched surfaces.
- Advise employees before traveling to take certain steps:
- Check the CDC’s Traveler’s Health Notices for the latest guidance and recommendations for each country to which you will travel.
- Ensure employees who become sick while traveling or on temporary assignment understand that they should notify their supervisor and should promptly call a healthcare provider for advice if needed.
- If an employee is confirmed to have coronavirus, employers should inform fellow employees of their possible exposure. However, employers are obligated to maintain confidentiality of the employee’s medical information as required by the ADA. Employees exposed to a confirmed carrier of coronavirus, should refer to CDC guidance for how to conduct a risk assessment of their potential exposure.