In response to the COVID-19 pandemic, the EEOC has updated its guidance on Pandemic Preparedness in the Workplace and the ADA, which it had originally issued in 2009 during the H1N1 virus pandemic. The EEOC’s guidance also references the Center for Disease Control and Prevention’s (“CDC”) Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19) and the Occupational Safety and Health Administration’s (“OSHA”) Guidance on Preparing Workplaces for COVID-19. The following memo provides practical guidelines to keep your workplaces safe based on the information from the EEOC, CDC, and OSHA. The full EEOC guidance can be found at: https://www.eeoc.gov/facts/pandemic_flu.html.1. What is COVID-19?
COVID-19 is a respiratory illness caused by the coronavirus. It originated in China and has since spread around the globe. On March 11, 2020, the World Health Organization declared the coronavirus outbreak to be a pandemic.2. What are the symptoms of COVID-19?
The most common symptoms of COVID-19 include fever, dry cough, shortness of breath, and tiredness. However, not all individuals who have COVID-19 will have a fever. Some individuals who have COVID-19 may have body aches, nasal congestion, a runny nose, a sore throat, or diarrhea.3. How does COVID-19 spread?
COVID-19 is thought to spread mainly from person-to-person through respiratory droplets produced when an infected individual coughs or sneezes. While individuals who are symptomatic are thought to be the most contagious, people who have COVID-19 but are asymptomatic may also spread the virus.4. How is the ADA relevant to the COVID-19 Pandemic?
The ADA prohibits employers from discriminating against an applicant or employee on the basis of a disability. The EEOC’s guidance explains that the ADA is relevant to pandemics, including COVID-19, in three ways. First, employers’ disability-related inquiries and medical examinations of employees and applicants, including those individuals who do not have ADA disabilities, are regulated by the ADA. Second, covered employers may not exclude individuals with disabilities from the workplace due to health or safety reasons unless they pose a “direct threat,” which is a significant risk of substantial harm even with reasonable accommodation. Third, the ADA’s requirement that employers provide reasonable accommodations to individuals with disabilities, barring an undue hardship, still applies during a pandemic.5. Can an employer make disability-related inquiries or require medical examinations of employees?
Generally speaking, no. However, there are certain instances where an employer may make disability-related inquiries or medical examinations of employees; please see below.6. May an employer make a disability-related inquiry or conduct a medical examination of an applicant?
No. Employers may not make a disability-related inquiry or conduct a medical examination of an applicant before making a conditional offer of employment.7. Under what circumstances may an employer make a disability-related inquiry or conduct a medical examination?
As long as all entering employees in the same job category are subject to the same inquiries and examinations, an employer may make disability-related inquiries and require an individual to undergo a medical examination after making a conditional offer of employment, but before the individual starts working.Additionally, employers may make disability-related inquiries and require individuals to undergo a medical examination during employment if the inquiry or examination is job related and consistent with business necessity. Whether an examination is job related and consistent with business necessity is based on whether the employee’s ability to perform the essential job functions will be impaired by the medical condition or whether the employee will pose a direct threat due to the medical condition.
8. What is considered a “direct threat” due to a medical condition?A “direct threat” is 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.
9. Is COVID-19 considered a direct threat?
Yes, the EEOC has recognized that COVID-19 is a direct threat under the ADA.10. What steps can an employer take, given that COVID-19 is considered a direct threat?
• Require employees to adopt infection-control practices, including regular hand washing, at the workplace;
• Encourage employees to work from home;
• Measure employees’ body temperatures;
• Ask employees who call in sick or report that they are feeling ill questions about their symptoms to determine if they have or may have COVID-19;
• Ask employees if they have been in physical contact with anyone who has been diagnosed with or has COVID-19;
• Ask whether employees may have been exposed to the coronavirus as a result of travel (whether personal or business related) before allowing them to return to the workplace;
• Send home employees who become infected with COVID-19 or exhibit symptoms associated with it;
• Inform fellow employees of their potential exposure to COVID-19 in the workplace where an employee has COVID-19 (without identifying the infected employee); and
• Require employees who have COVID-19 to not return to work until they meet the CDC’s criteria to discontinue home isolation.
No. Offices of healthcare providers and medical facilities may be extremely busy and may not be able to provide such documentation in a timely manner.12. What precautions should employers take with respect to information learned as a result of disability-related inquiries or medical examinations?
13. May an employer ask employees who are not exhibiting symptoms of COVID-19 to disclose if they have a medical condition that makes them more susceptible to suffering complications from COVID-19?While the ADA generally prohibits employers from making disability-related inquiries or requiring medical examinations of individuals who are not experiencing symptoms, an employer may make disability-related inquiries or require medical examinations of employees who are not exhibiting symptoms of COVID-19 to identify those who are at a higher risk of suffering from complications. This is due to the seriousness of the COVID-19 pandemic and the fact that such employees could face a direct threat if they contract the disease.
14. Are employers required to provide reasonable accommodations to employees with known disabilities that are unrelated to COVID-19, barring an undue hardship?Yes, an employer’s responsibilities under the ADA continue during the COVID-19 pandemic. An employer can only lawfully exclude an employee from employment (or employment-related activities) when the employer can demonstrate that the person with a disability poses a direct threat, even after a reasonable accommodation.
15. What should employers know about hiring during the COVID-19 pandemic?Employers may screen applicants for symptoms of COVID-19 after making a conditional job offer, so long as they do so for all entering employees in the same type of job.
Employers may delay the start state of an individual who has COVID-19 or who is exhibiting symptoms associated with the disease.Where an employer needs an applicant to start working immediately, but the individual may not do so because he or she has COVID-19 or is exhibiting symptoms of COVID-19, the employer may withdraw the job offer.
16. What information can an employer share with its employees to educate them on how to reduce the spread of COVID-19?Employers can share the CDC’s recommendations on steps to reduce the spread of COVID-19, which include: • Following policies and procedures relating to cleaning and disinfecting.
Employers with fewer than 500 employees must comply with the newly enacted Families First Coronavirus Response Act (“FFCRA”), which was signed into law on March 18, 2020. The FFRCA will be in effect from April 2, 2020 through December 31, 2020 and provides for expanded and paid leave through two primary vehicles: 1) the Emergency Family and Medical Leave Expansion Act, which provides for up to 12 weeks of family leave, 10 of which is paid; and 2) the Emergency Paid Sick Leave Act, which provides for two (2) weeks of paid sick leave. Both are explained is a separate article as well as in a Frequently Asked Questions guidance available on our website at https://www.shankmanleone.com/the-families-first-coronavirus-response-act-ffcra and https://www.shankmanleone.com/faqs-concerning-the-newly-enacted-families-first-coronavirus-response-act-ffcra. You may also contact us with your questions and concerns.Employers also can ensure that their sick leave policies are flexible and consistent with guidance from public health authorities and also ensure that their employees are aware of and understand these policies. Employers should also consider reviewing their other policies to verify that they are consistent with public health recommendations and existing state and federal workplace laws. Additionally, employers can implement or maintain policies that allow employees to stay home to care for a family member who is sick or to care for children whose schools are closed.
Another way employers can support employees is to allow advances on future sick leave and allow employees to donate sick leave to other employees. Further, employers who do not currently offer sick leave to some or all of their employees may consider implementing non-punitive sick leave policies.Employers should connect employees to any available employee assistance programs and/or community resources that can provide social, behavior, and other services. Last, employers should be aware of workers’ concerns about pay, leave, safety, health, and other issues that may arise during the COVID-19 pandemic. As such, employers should provide adequate, usable, and appropriate training, education, and informational materials about business-essential job functions and worker health and safety, including proper hygiene practices and the use of any workplace controls, such as personal protective equipment, where appropriate. Employers should also work with their benefits carriers and state and local health agencies to provide information to workers and customers about medical care needed during the pandemic.
As you know, the situation with and guidance around COVID-19 is ever evolving. We will continue to monitor guidance from the EEOC, CDC, and OSHA and provide updates should any of the above guidance materially change. Of course if you have any questions, please do not hesitate to contact us.