On Thursday, March 12, 2020, my colleague Laura Rubenstein and I conducted a webinar with BBG to help employers stay calm amidst the panic as COVID-19 (or coronavirus) went from a distant problem to a pandemic affecting every state. A recording of that webinar is available here. As we anticipated and discussed, many things have changed and employers are adjusting on the fly. Schools and day care centers are closed for weeks, if not months. In many states, bars and restaurants have been forced to close or transition to carry-out or delivery-only options. “Social distancing” is a household phrase. These changes have had significant impact on employers and, as this has been going on, a number of questions have popped up, from issues mundane to massive, as theoretical issues employers considered when drafting their policies suddenly have real-world impacts. A few of those frequently asked questions are below. We also have Guidelines from the EEOC to read here
Q: Can I require that an employee who misses work due to COVID-19 bring a doctor’s note to either confirm the reason for the absence or to certify that they are fit to return to work?
A: If the absence is for more than two consecutive days in Maryland (or some other time, depending on where you are located), then technically, you may require that an employee returning to work provide a doctor’s note to either certify the reason for the absence or that they may return to work without presenting a direct threat to their co-workers. However, from a practical standpoint, the World Health Organization and other physician groups are requesting that employers eliminate these requirements for the time being as providers are going to be overwhelmed, making obtaining a doctor’s note practically impossible.
Q: If, due to decreased productivity or demand, we reduce employees to part-time schedules, how do we handle exempt (salaried) employees?
A: Exempt employees are required to be paid their full salary for any workweek in which they perform any productive work. Full day absences may not be deducted when caused by lack of work from the employer – instead those are limited to situations where the absence is caused by the employee, such as vacation, use of paid time off, or sick leave.
Q: What if an exempt employee is less productive than they would be at the office or not always available while teleworking?
A: These issues need to be handled through the disciplinary process, not through salary reductions. Again, see above.
Q: Does HIPAA prevent me from disclosing information about an employee who tested positive for the coronavirus or is showing symptoms?
A: HIPAA only prohibits disclosure if the employer first learned of the coronavirus diagnosis through a health insurance claim filed by an employee which would likely trigger HIPAA preventing disclosure. To avoid further spread, companies are encouraged to promptly inform work colleagues of positive tests, but it should be done without divulging details about the infected worker’s identity. To comply with the ADA and other privacy laws, employers may not specifically disclose the identity of the infected employee or provide information that will allow other employees to identify the infected individual.
Employees should also be kept informed of actual or potential exposure to allow employees to monitor themselves for symptoms and self-quarantine themselves, if appropriate.
Q: Could a company be liable for negligence if it hasn’t instituted enhanced cleaning routines in publicly accessible areas?
A: The lawsuits which may arise from this pandemic have yet to be filed and the Courts’ reactions have yet to be revealed. Nonetheless, all employers should follow the CDC’s recommendations for cleaning and disinfecting and document that their cleaning processes comply with the CDC’s guidance. It is possible that these cleaning recommendations could be seen as the minimum standards of care.
OSHA mandates that employers provide a safe workplace for all employees, free of known health and safety hazards. The Act, requires employers to provide a workplace “free from recognized hazards … likely to cause death or serious bodily harm.” The latest guidance provided by OSHA does encourage employers to implement policies that will result in the “prompt identification and isolation of potentially infectious individuals” in order to protect the safety of employees but otherwise generally adopts the CDC’s guidance. Putting OSHA aside, even these cleaning protocols may not mean much if a worker can trace his or her contraction to the workplace effectively setting up a worker’s compensation claim.
Q: What should an employer do if they discover an employee is exhibiting flu-like symptoms?
A: Under ordinary circumstances, questioning symptomatic employees about possible health conditions raises issues under the ADA, which prohibits an employer from discriminating against employees on the basis of disability. However, as COVID-19 has been designated as a pandemic, employers have greater latitude in how they respond to employee illnesses. Where the spread poses a direct threat to the health or safety of the individual or others that cannot otherwise be eliminated or reduced by reasonable accommodation, employers may make reasonable inquiries provided medical information received is maintained confidentially. The ADA also permits an employer to take the employee’s temperature to confirm fever where an employer has a reasonable belief of a direct threat.
If an employee is showing flu-like symptoms, an employer may send the employee home without violating the ADA and may prohibit the employee from returning to the workplace until at least 24 hours after the fever has subsided without fever-reducing medicines. Keep in mind that an eligible employee at a covered employer who contracts COVID-19 is likely entitled to up to 12 weeks of unpaid job-protected leave pursuant to the FMLA. Similar leave exists for employees whose immediate family members become infected with the virus and there is pending legislation which may make such leave paid leave instead of unpaid.
Q: What should I do if I have an asymptomatic employee refusing to attend work because of fear of exposure to COVID-19?
A: Under OSHA, the refusal by an employee to come to work due to concerns over contracting COVID-19 may be considered protected activity and implicate OSHA’s anti-retaliation guidelines. Depending on the facts and circumstances, protection from retaliation or discipline exists if the employee refuses to work upon a reasonable belief they are in imminent danger and the employee has no reasonable alternative but to avoid the workplace. In such a case, an employer is prohibited from discriminating against the employee for missing work. The employee’s belief has to be reasonable under these circumstances but the employer needs to be consistent in its messaging and response to such concerns.
These are just some of a myriad of questions that we’ve seen since COVID-19 reached pandemic status. Navigating the alphabet soup of the CDC, EEOC, DOL, OSHA, and other agencies can be tricky, but we are staying up to date as circumstances change daily. If you have questions, please reach out to myself or another of my colleagues for guidance on how to navigate the issues presented by COVID-19.
Guidance Released from the EEOC
What You Should Know About the ADA, the Rehabilitation Act, and COVID-19
- The EEOC enforces workplace anti-discrimination laws including the Americans with Disabilities Act (ADA) and the Rehabilitation Act, including the requirement for reasonable accommodation and rules about medical examinations and inquiries.
- The ADA and Rehabilitation Act rules continue to apply, but they do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state/local public health authorities about steps employers should take regarding COVID-19. Employers should remember that guidance from public health authorities is likely to change as the COVID-19 pandemic evolves. Therefore, employers should continue to follow the most current information on maintaining workplace safety.
- The EEOC has provided guidance (a publication entitled Pandemic Preparedness in the Workplace and the Americans With Disabilities Act), consistent with these workplace protections and rules, that can help employers implement strategies to navigate the impact of COVID-19 in the workplace. This pandemic publication, which was written during the prior H1N1 outbreak, is still relevant today and identifies established ADA and Rehabilitation Act principles to answer questions frequently asked about the workplace during a pandemic.
- The World Health Organization (WHO) has declared COVID-19 to be an international pandemic. The EEOC pandemic publication includes a separate section that answers common employer questions about what to do after a pandemic has been declared. Applying these principles to the COVID-19 pandemic, the following may be useful:
How much information may an employer request from an employee who calls in sick, in order to protect the rest of its workforce during the COVID-19 pandemic?
- During a pandemic, ADA-covered employers may ask such employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.
When may an ADA-covered employer take the body temperature of employees during the COVID-19 pandemic?
- Generally, measuring an employee’s body temperature is a medical examination. Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees’ body temperature. However, employers should be aware that some people with COVID-19 do not have a fever.
Does the ADA allow employers to require employees to stay home if they have symptoms of the COVID-19?
- Yes. The CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace. The ADA does not interfere with employers following this advice.
When employees return to work, 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 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.
If an employer is hiring, may it screen applicants for symptoms of COVID-19?
- Yes. An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job. This ADA rule applies whether or not the applicant has a disability.
May an employer take an applicant’s temperature as part of a post-offer, pre-employment medical exam?
- Yes. Any medical exams are permitted after an employer has made a conditional offer of employment. However, employers should be aware that some people with COVID-19 do not have a fever.
May an employer delay the start date of an applicant who has COVID-19 or symptoms associated with it?
- Yes. According to current CDC guidance, an individual who has COVID-19 or symptoms associated with it should not be in the workplace.
May an employer withdraw a job offer when it needs the applicant to start immediately but the individual has COVID-19 or symptoms of it?
- Based on current CDC guidance, this individual cannot safely enter the workplace, and therefore the employer may withdraw the job offer.
- How much information may an employer request from an employee who calls in sick, in order to protect the rest of its workforce during the COVID-19 pandemic?
Visit our COVID-19 Resource Page for more updates.