• Kevin A. James

EEOC Issues Guidance for Employers Managing Their Workforce During the COVID-19 Outbreak.

The Equal Employment Opportunity Commission has issued updated guidance for employers on how to manage their workforce in compliance with the Americans with Disabilities Act during this pandemic.


The ADA applies to employers with 15 or more employees, but, in California, the Fair Employment and Housing Act prohibits discrimination against persons with disabilities for employers of five or more employees. The ADA prohibits employers from making disability-related inquiries and requiring medical examinations of employees, except under limited circumstances. One of those circumstances is when the employee poses a direct threat to the health or safety of the individual or others and that threat cannot be eliminated or reduced by reasonable accommodation.


Unlike that guidance issued by the EEOC during the H1N1 flu pandemic, the EEOC’s guidance issued March 21, 2020, states that COVID-19 currently poses such a direct threat.


While the EEOC states that while the commission recognizes that public health recommendations may change during a crisis and differ between states, employers are expected to make their best efforts to obtain public health advice that is contemporaneous and appropriate for their location, and to make reasonable assessments of conditions in their workplace based on this information. If the CDC and state/local public health authorities revise their assessment of the spread and severity of COVID-19, that could affect whether a direct threat still exists.


Below are the commission’s answers to questions commonly asked by employers:


Q: May an ADA-covered employer send employees home if they display influenza-like symptoms during a pandemic?


Yes. The CDC states that employees who become ill with symptoms of influenza-like illness at work during a pandemic should leave the workplace. 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. Applying this principle to current CDC guidance on COVID-19, this means an employer can send home an employee with COVID-19 or symptoms associated with it.


Q: During a pandemic, how much information may an ADA-covered employer request from employees who report feeling ill at work or who call in sick?


Based on current CDC guidance on COVID-19, employers may ask employees who report feeling ill at work, or who call in sick, questions about their symptoms to determine if they have or may have COVID-19. Currently these symptoms include, for example, 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.


Q: During a pandemic, may an ADA-covered employer take its employees’ temperatures to determine whether they have a fever?


Generally, measuring an employee’s body temperature is a medical examination, and not permitted. However. because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions as of March 2020, employers may measure employees' body temperature. As with all medical information, the fact that an employee had a fever or other symptoms would be subject to ADA confidentiality requirements. Employers should be aware that some people with COVID-19 do not have a fever.


Q: When an employee returns from travel during a pandemic, must an employer wait until the employee develops influenza symptoms to ask questions about exposure to pandemic influenza during the trip?


Generally, an employee could not make such an inquiry. But if the CDC or state or local public health officials recommend that people who visit specified locations remain at home for several days until it is clear they do not COVID-19 influenza symptoms, an employer may ask whether employees are returning from these locations, even if the travel was personal. Similarly, with respect to the current COVID-19 pandemic, employers may follow the advice of the CDC and state/local public health authorities regarding information needed to permit an employee’s return to the workplace after visiting a specified location, whether for business or personal reasons.


Q: May an employer encourage employees to telework (i.e., work from an alternative location such as home) as an infection-control strategy during a pandemic?


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.


Q: During a pandemic, may an employer require its employees to adopt infection-control practices, such as regular hand washing, at the workplace?


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.


Q: During a pandemic, 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?


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.


Q: During a pandemic, must an employer continue to provide reasonable accommodations for employees with known disabilities that are unrelated to the pandemic, barring undue hardship?


Yes. An employer’s ADA responsibilities to individuals with disabilities continue during an influenza pandemic. Only when an employer can demonstrate that a person with a disability poses a direct threat, even after reasonable accommodation, can it lawfully exclude him from employment or employment-related activities.


If an employee with a disability needs the same reasonable accommodation at a telework site that he had at the workplace, the employer should provide that accommodation, absent undue hardship. In the event of undue hardship, the employer and employee should cooperate to identify an alternative reasonable accommodation.


For example, an accountant with low vision has a screen-reader on her office computer as a reasonable accommodation. In preparation for telework during a pandemic or other emergency event, the employer issues notebook computers to all accountants. In accordance with the ADA, the employer provides the accountant with a notebook computer that has a screen-reader installed.


All employees with disabilities whose responsibilities include management during a pandemic must receive reasonable accommodations necessitated by pandemic conditions, unless undue hardship is established.


Q: During a pandemic, may an employer ask an employee why he or she has been absent from work if the employer suspects it is for a medical reason?


Yes. Asking why an individual did not report to work is not a disability-related inquiry. An employer is always entitled to know why an employee has not reported for work.


For example, during a pandemic, an employer directs a supervisor to contact an employee who has not reported to work for five business days without explanation. The supervisor asks this employee why he is absent and when he will return to work. The supervisor’s inquiry is not a disability-related inquiry under the ADA.


Q: 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?


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.


The complete EEOC guidance, which includes recommendations on steps for employers to take to be prepared for an pandemic and guidance on hiring during a pandemic, can be found here:

https://www.eeoc.gov/facts/pandemic_flu.html#secB


The Takeaway...


Making employment decisions based on an employee's medical information or status should always be navigated carefully. The COVID-19 epidemic is also a rapidly evolving situation with updated guidance being released daily. Before instituting policies, or making employment decisions related to COVID-19, make sure you've reviewed the most updated guidance from the EEOC and other related agencies and have your policies reviewed by an attorney who's familiar with these issues. It's also important to keep these questions in mind as this pandemic inevitably passes and employees start coming back into the workplace.

Kevin A. James is a business attorney in Placerville, CA. He helps business owners navigate the complex legal landscape in California with the goal of making his client’s businesses more profitable and simpler to operate. He can be reached at kjames@bncj-law.com or (530) 295-6400.




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