As medical practices and other workplaces begin to emerge from the closures and restrictions imposed in response to the COVID-19 pandemic, employers need to know what they can and cannot require of their employees. On March 21, 2020, the Equal Employment Opportunity Commission (EEOC) updated a 2009 publication that had been issued during the H1N1 influenza outbreaks to advise employers of their rights and responsibilities under federal employment laws. Further guidance was published on June 17, 2020, in the form of Technical Assistance Questions and Answers, and in a question-and-answer webinar published on the agency’s website. The EEOC publications address the impact of the Americans with Disabilities Act (ADA), the Rehabilitation Act, Title VII of the Civil Rights Act, the Age Discrimination in Employment Act (ADEA) and the Genetic Information Nondiscrimination Act (GINA). It also is important to take state and local laws into account when adopting and reviewing employment practices.
What employers are covered?
Title I of the ADA applies to private employers with 15 or more employees. The ADA prohibits discrimination based upon a disability or perceived disability, defined as a substantial limitation of a major life activity, and also imposes a reasonable accommodation obligation. It also applies to state and local government employers, employment agencies and labor unions.
The Equal Opportunity in Employment Act applies to employers who have 15 or more employees who worked for at least 20 calendar weeks (in this year or last). Don’t stop reading if you have fewer than 15 employees – the Pennsylvania Human Relations Act follows many EEOC policies and applies to companies with as few as four employees.
The ADEA applies to age discrimination claims against employers who have 20 or more employees who worked for the company for at least 20 calendar weeks (in this year or last).
The Rehabilitation Act prohibits discrimination on the basis of disability in programs conducted by Federal agencies, in programs receiving Federal financial assistance, in Federal employment and in the employment practices of Federal contractors. The standards for determining employment discrimination under the Rehabilitation Act are generally the same as those used in title I of the Americans with Disabilities Act.
Title II of the Genetic Information Nondiscrimination Act (GINA) protects individuals against employment discrimination on the basis of genetic information. GINA covers employers with 15 or more employees, including state and local governments. It also applies to employment agencies, labor organizations, joint labor-management training and apprenticeship programs, and the federal government.
Screening current employees for COVID-19
EEOC guidelines provide that generally, a disability-related inquiry or medical examination of an employee may be required if it is “job-related and consistent with business necessity,” when an employer “has a reasonable belief, based on objective evidence, that: (1) an employee’s ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition.” Disability-related inquiries and medical examinations that follow up on a request for reasonable accommodation when the disability or need for accommodation is not known or obvious also may be job-related and consistent with business necessity. In addition, periodic medical examinations and other monitoring under specific circumstances may be job-related and consistent with business necessity. In other words, whatever testing an employer does should be job-related, medically sound and intended to mitigate a direct threat to health and safety.
May ADA-covered employers ask employees if they are experiencing symptoms such as fever, chills, cough, shortness of breath, or sore throat? EEOC says yes. As the Centers for Disease Control (CDC) identifies more symptoms associated with COVID-19, EEOC indicates that employees may be asked about those symptoms as well.
How about testing or screening your employees? It is permissible to measure employees’ body temperatures, but keep in mind that the virus does not always produce a fever in exposed individuals. It also is permissible to keep a log of temperature readings, but that data must be protected as confidential and access to this data should be strictly limited to those individuals with a legitimate need to use it.
Employers may administer a test to detect the presence of the COVID-19 virus before permitting employees to enter the workplace, so long as the employers ensure that the tests are accurate and reliable. The recent guidance singles out antibody testing as not currently meeting that standard as determined by the CDC. EEOC states that antibody tests do not meet the ADA’s “job related and consistent with business necessity” standard for medical examinations or inquiries for current employees. Therefore, requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA. The EEOC confirms that tests to determine if someone has an active case of COVID-19 (i.e., a viral test) are permissible under the ADA.
Can you ask your employees if their family members have COVID-19 or associated symptoms? EEOC has stated that a better question to ask is whether an individual has had contact with anyone known by the employee to have been diagnosed with, or had symptoms of, COVID-19. EEOC noted that employers are generally prohibited from asking about family members’ health status under GINA. A broader question would not require an employee to identify whether the potentially exposed person or persons they had been in contact with was a relative.
An employer may disclose the identity of an employee who has tested positive for COVID-19 to public health agencies. Note that employers who learn this information through their group health plans must determine if the disclosure is permitted under HIPAA – the Privacy Rule permits covered entities to disclose protected health information, without authorization, to public health authorities who are legally authorized to receive such reports for the purpose of preventing or controlling disease, injury, or disability, including conducting public health surveillance, investigations, or interventions.
Can you tell your staff that an employee has tested positive and identify that employee? The EEOC noted that the ADA does not permit such a broad disclosure of the medical condition of a specific employee. More importantly, this broad disclosure is not recommended by the CDC. The CDC specifically advises employers to maintain confidentiality of people with confirmed COVID-19.
An employer who knows that an employee who is teleworking, or who has taken leave, because the person has COVID-19 or symptoms associated with the disease may tell staff that the employee is teleworking or on leave, but should not reveal the reason for the remote work or leave.
Recruiting and hiring
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. An individual with symptoms of COVID-19 or active infection who has been offered employment may have their start date delayed, and the employer may even withdraw the offer. EEOC cites the fact that current CDC guidance states that an individual who has COVID-19 or symptoms associated with it should not be in the workplace.
What about high-risk individuals? EEOC says that employers may not unilaterally delay the start dates of candidates who are 65 or older, or pregnant women, despite their being at greater risk, or withdraw offers on that basis. However, an employer may choose to allow telework or to discuss with these individuals if they would like to postpone their start date.
The ADA requires employers to make “reasonable accommodations” for employees who have a “disability” but are able to perform the essential tasks of their jobs. So, is COVID-19 a disability for ADA purposes? A disability is defined as a physical or mental impairment that substantially limits one or more major life activities, a history or record of such an impairment, or perception by others of such an impairment. In response to that question during a March 27, 2020, webinar, the EEOC stated: “This is a very new virus, and while medical experts are learning more about it, there is still much that is unknown. Therefore, it is unclear at this time whether COVID-19 is or could be a disability under the ADA.”
In determining how to handle a COVID-19 employee, a functional assessment would be the appropriate approach. If the person is asymptomatic, they would not have a disability. If, for example, the employee needs to receive time off to convalesce, the reasonable accommodation obligation is likely to apply. Keep in mind that if the employer has 50 or more employees in 20 or more workweeks in the current or preceding calendar year, the employee still may be entitled to unpaid leave under the Family and Medical Leave Act (FMLA).
If an employee has an ADA-covered disability, such as cancer or pulmonary disease, that puts him or her at greater risk from COVID-19, and requests an accommodation to return to the workplace, the employer should investigate readily implemented solutions such as designating one-way aisles; using plexiglass, tables, or other barriers to ensure minimum distances between customers and coworkers whenever feasible per CDC guidance; or other accommodations that reduce chances of exposure.
The EEOC notes that the ADA does not require that an employer accommodate an employee without a disability based on the disability-related needs of a family member or other person with whom he or she is associated. An employer is free to offer accommodations in those situations, but cannot be forced to do so.
As with all things associated with this pandemic, both medical science and the regulatory community continue to monitor new developments and adjust their responses. The interpretations described in this article may have changed by the time it is published, or at any time thereafter. Before taking action, employers should consult knowledgeable counsel.