As restrictions ease, businesses in California are re-opening. Employers are responding in unprecedented ways to provide a safe work environment and reduce the spread of COVID-19. The U.S. Equal Opportunity Employment Commission (EEOC) provided business owners with additional guidance on June 17th, addressing issues such as the screening of employees who wish to return to work and compliance with the regulations of the Americans with Disability Act (ADA). Title 1 of the ADA applies to private employers with 15 or more employees, state and local government employers, employment agencies, and federal agencies.
The EEOC explained that while anti-discrimination laws, including the ADA, continue to apply during the pandemic, the ADA does not prohibit employers from adhering to the suggestions and guidelines issued by the Center for Disease Control (CDC) as well as those issued by state or local health authorities. The following article answers some of the most commonly asked questions employers have regarding what actions they may take during the pandemic without violating the ADA.
Employee Medical Information:
- Can employers require COVID-19 and/or antibody testing?
- The EEOC has distinguished between testing for COVID-19 and testing for an antibody. Employers are permitted to administer COVID-19 testing before allowing employees to re-enter the workplace as long as the testing is (1) job related and (2) considered a business necessity: i.e., an employee with the virus would pose a “direct threat” to the health of others. An employer cannot however, require antibody testing before allowing employees to re-enter the workplace. Pursuant to ADA regulations, antibody testing is not considered “job related and consistent with business necessity.”
- Can employers screen employees who enter the workplace for symptoms of COVID-19?
- Yes. Employers can screen employees for symptoms of the coronavirus prior to re-entering the workplace. The CDC has provided a list of common symptoms which include, among other things: shortness of breath, muscle or body aches, fatigue, a headache, congestion, a fever, a cough, a sore throat, a new loss of smell or test and gastrointestinal distress. If an employee requests an alternative method of screening due to a pre-existing medical condition, the employer should consider the request to be a reasonable accommodation under the ADA. In addition, the ADA permits employers to perform medical exams if the exams are job-related and consistent with business necessity. All screenings must be consistent with advice from the CDC.
- Under the ADA, are employers permitted to require employees to stay home if they have symptoms of the coronavirus?
- Yes. The CDC provides that employees who become sick with symptoms of the coronavirus should leave the workplace immediately. The ADA does not interfere with the CDC’s advice.
- When returning to work can an employer require an employee to provide a doctor’s note confirming that the individual is COVID free?
- Yes. An employer can require that a doctor provide a certification of health because it would be justified under the ADA standards for disability-related inquiries of employers.
- Can an employer exclude an employee from the workplace because the employee has an underlying medical condition that puts that employee at a greater risk of illness due to COVID-19?
- No. An employer cannot exclude an employee from the workplace merely because that employee has a pre-existing medical condition that puts him or her at greater risk of becoming seriously ill due to COVID-19. Pursuant to the ADA, an employer can only prevent an employee from returning to the workplace if the employee’s disability poses a “direct threat” to his or her health that cannot be eliminated by providing reasonable accommodations. To establish that returning to the workplace is a “direct threat” to the employee’s health, the employer must establish that the employee has a disability that poses a “significant risk of substantial harm” to his or her own health. Should the employer demonstrate that there is a “significant risk of substantial harm” to the employee’s health, the employer cannot prohibit that employee from returning to work unless he or she can demonstrate the inability to make reasonable accommodations for that employee (such as working remotely or being reassigned to a different position).
- Does an employer have an obligation to report cases of COVID-19 among its workforce?
- No. There is no requirement for an employer to disclose cases of COVID-19 among its workforce. An employer may disclose the name of an infected employee to a public health agency if he or she wishes.
- Can an employer store information that an employee has COVID-19 in that employee’s personnel file?
- No. Under the ADA, an employer cannot store any medical information, including information related to COVID-19, in an employee’s personnel file. An employer is permitted to store information related to COVID-19 in an employee’s medical file providing that access to that file is restricted in accordance with ADA requirements.
- Can employers require employees returning to work to wear personal protective gear and engage in infection control practices?
- Yes. An employer can require that its employees wear protective gear (such as masks or gloves) and follow strict hand washing protocols. If an employee with a disability requires a reasonable accommodation under the ADA (such as non-latex gloves), then the employer must provide a modification or an alternative if it does not pose an “undue hardship” on the employer.
- An employee has an underlying medical condition that puts him or her at a greater risk for severe illness if he or she contracts COVID-19. Must the employer take proactive measures to provide a reasonable accommodation?
- No. The ADA does not require that the employer take any proactive measures in this case. In fact, the ADA does not permit the employer to exclude the employee solely because the CDC identifies the employee as having a greater risk for severe illness if he or she contracts COVID-19. Pursuant to the ADA, such action is not allowed unless the employee’s disability poses a “direct threat” to his health that cannot be reduced by providing a reasonable accommodation.
Defining “reasonable accommodations” related to COVID-19:
- How can an employer make “reasonable accommodations” available to its workers prior to their return to work?
- The ADA allows employers to provide notice to its employees about whom to contact if they need a reasonable accommodation to return to work. In addition, an employer may inform its employees of all the CDC-listed medical conditions that put people at greater risk of severe illness should they contract the coronavirus. An employer can consider, on an individualized basis, any requests for accommodations by people who have these underlying conditions. It is important to note that the employer must handle all requests consistently with federal anti-discrimination laws.
- Can an employer postpone a start date or withdraw a job offer because an individual is at a greater risk from COVID-19?
- No. An employer cannot postpone a start date or withdraw a job offer if a current or potential employee is deemed to be in a more vulnerable population. Pregnant women, people with compromised immune systems and people over the age of 65 have been found to be at a higher risk from COVID-19. The ADEA prohibits employment discrimination against people age 40 or older. In contrast to the ADA, the ADEA does not provide a right for reasonable accommodations for workers due to age. Employers are however permitted to provide flexibility to employees age 65 and older, even if it results in workers ages 40-65 being treated less favorably.
- If an employee is a member of a vulnerable population and is employed by a company where work can only be performed on-site, what kind of reasonable accommodations can an employer offer to that worker?
- Flexibility and innovation by employers and workers are essential in finding ways to keep employees productive while not jeopardizing their health. Employing plexiglass to separate employees from one another or from customers, temporary transfers to a different position, or modified work schedules are some of the methods by which employers can accommodate those individuals with pre-existing disabilities.
- An employer does not need to provide reasonable accommodations if doing so would impose an “undue hardship” on the employer. What is considered an “undue hardship?”
- An undue hardship may occur where an employer determines whether its present situation creates “significant difficulty” in providing certain accommodations. It is recommended that an employer consult employment counsel to assist in determining whether the circumstances rise to the legal definition of an “undue hardship” to mitigate against exposure on a failure to accommodate claim. To the extent possible, employers and employees are encouraged to collaborate to find solutions that allow workers to balance their personal needs and the demands of their jobs.
Our country is in a constant state of flux. Businesses have made significant changes to their worksites in order to provide safer facilities for their employees and customers. Employers must now carefully balance conducting business while protecting the health of their employees and being mindful not to violate the provisions of the Americans with Disability Act. If you are an employer, it is strongly recommended that you retain the services of an experienced and knowledgeable employment law attorney to ensure that you are implementing the necessary measures to comply with all applicable rules and regulations.
For a free consultation, contact Eanet, PC online or (310) 997-4185.