The increased spread of the novel coronavirus (COVID-19) in the United States presents employers with significant workplace challenges. If an employee is manifesting symptoms, or is known to have a family member who has contracted the virus, can the employer order the employee to stay home in face of privacy and discrimination laws? Companies have several options to address these concerns.
Comprehensive COVID-19 Response Program
First, it is important for an employer to have a COVID-19 response program in place. Although temperature checks normally constitute an overly broad medical exam under the Americans with Disabilities Act (ADA) (because the exam is not “job-related and consistent with business necessity”), the EEOC recently changed its guidance in light of the COVID-19 pandemic. Under the new guidance, the EEOC states that “If pandemic influenza symptoms become 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.”
However, temperature screening should not be an employer’s only response to the COVID-19 outbreak; rather, a temperature check is only one element of a comprehensive program, including employee education about COVID-19 symptoms, employee and visitor screening questionnaires or interviews related to other risk factors, limitations on non-essential travel, encouragement to work from home, emphasis on good hygiene (e.g., handwashing), social distancing, and assessment of paid and unpaid leave programs.
An employee who contracts COVID-19 may be entitled to reasonable accommodation and protection under the ADA if the employee’s reaction to COVID-19 is severe or if it complicates or exacerbates one or more of an employee’s other health condition(s)/disabilities.
Where the basis for seeking the medical information is rooted only in a belief that the employee may pose a “direct threat” of harm to others by spreading the virus but there is no indication that the employee has medical restrictions on performing essential job functions, the fitness-for-duty certification should be focused on whether or not the employee poses a direct threat in the workplace.
Under what Circumstances May an Employee be Banned from the Worksite Due to COVID-19 Concers?
If, after a comprehensive COVID-19 response program, the employer determines that the employee poses a threat to the workplace for the other employees, the employer may refuse to permit an employee to work under certain circumstances.
The Americans with Disabilities Act generally prohibits employers from discriminating against individuals on the basis of disability. An exception to this rule, however, is that an employer may exclude individuals from the workplace if they pose a “direct threat” to the health or safety of the themselves or other employees. A direct threat is defined as someone who poses a “substantial risk” to the health or safety of other employees in the workplace that cannot be mitigated or eliminated by reasonable accommodation.
On March 21, 2020, the EEOC announced that the COVID-19 pandemic meets the definition of a direct threat. The EEOC concluded that someone with COVID-19, or symptoms of it, presents a substantial risk to the workplace at the current time. And, given the CDC’s guidance on the virus (on which the EEOC explicitly relies in its recent publication), a “direct threat” would also apply to a situation where the employee has come into contact with someone known or likely to have the virus.
Thus, there are two situations in which an employee can be excluded from the workplace during the COVID-19 pandemic:
- Where the employee has COVID-19, or symptoms of it; or
- Where the employee has come into contact with someone known or likely to have the virus
Can an Employee be Asked About Symptoms if the Employee Calls in Sick?
Yes. 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. 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.
Can the Employer Require a Medical Certification Before Permitting the Employee to Return to Work?
Yes. According to the EEOC’s recent guidance, 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.
Is an employer allowed to fire an employee because of the impact COVID-19 has had on its business?
Yes, with limited exceptions. Employers in many industries are likely to be forced to terminate or cut back hours for many workers as a result of the measures being taken to grapple with COVID-19. Employees in 49 of the 50 states are considered at-will, which generally means that an employer may terminate an employee for any reason or for no reason at all, except for an illegal reason. There are no states that have passed laws prohibiting an employer from terminating an employee due to a substantial disruption to the employer’s business like the one caused by COVID-19. Even Montana — the one state in which workers are not employed at-will — permits an employer to terminate an employee for a legitimate business reason. The primary exception to this general rule arises in cases where an employee is working under a contract. Contractual employees are not at-will employees; the terms and conditions of their employment are set forth in writing.
The most common example of contractual employees are union employees, who have collectively bargained with their employers to secure certain rights and protections. In some cases, those rights and protections may insulate workers from the vicissitudes of the economy and ensure that an economic downturn does not result in them losing their job.
Because the COVID-19 situation is dynamic, with new government measures occurring each day, employers should consult with Pierce/McCoy’s Labor and Employment Team for the latest developments and updated guidance on these topics.