By Laura I. Bernstein, Attorney, Felhaber Larson
With businesses opening back up, it is important to remember that COVID-19 is still a new disease, and our knowledge about it changes weekly, and perhaps even more frequently than that. As a result, employers need to be aware of permissible inquiries related to disabilities, and know what special precautions they should take for employees with high risk conditions. Also, employers should check regularly to see if guidance has changed, as previous guidances from federal agencies have been reversed or revoked just days later.
The Centers for Disease Control (CDC) recognizes that the following groups are at high-risk for severe illness from COVID-19:
- People over 65 years old
- People who live in a nursing home or long-term care facility
- People with underlying medical conditions, including chronic lung disease or moderate to severe asthma; serious heart conditions; and immunocompromised individuals or individuals with conditions that can cause a person to become immunocompromised, such as undergoing cancer treatment, bone marrow or organ transplantation, immune deficiencies, HIV or AIDS, and use of immune-weakening medications
- People with severe obesity
- People with diabetes
- People with chronic kidney disease undergoing dialysis
- People with liver disease
For individuals who fall into any of the above categories, the CDC still recommends staying home if possible. But what can employers do to protect employees who fall into these categories as workplaces reopen?
What Can Employers Ask?
The Equal Employment Opportunity Commission (EEOC) has not explicitly stated whether employers can ask employees to disclose if they fall into one of the high-risk groups above. As a potential workaround to directly asking this question, the EEOC says that employers may ask employees if they will need a reasonable accommodation upon returning to the workplace, thereby encouraging them to volunteer information related to a high-risk status.
When an employee calls in sick, the EEOC advises that employers are allowed to ask employees if they are experiencing COVID symptoms, such as fever, chills, cough, shortness of breath, or sore throat. Employers must be sure to maintain all information obtained from such inquiries as a confidential medical record in compliance with the Americans with Disabilities Act (ADA).
The EEOC has sanctioned employer-conducted body temperature screenings during the pandemic. If an employer choses to screen employees as they return to the workplace, they may ask about the above symptoms as part of the screening process.
What Can Employers Do?
Employers may require employees to stay home from work if they have symptoms of COVID-19. Employers can also require employees who exhibit symptoms to leave the workplace. However, the EEOC notes that “the ADA does not allow the employer to exclude the employee—or take any other adverse action—solely because the employee has a disability that the CDC identifies as potentially placing him at “higher risk for severe illness” if he gets COVID-19.”
Employers can also require employees to submit a doctor’s note certifying fitness for duty after being sick with
COVID-19 in order to permit them to return to work. The EEOC counsels employers that they might have to be somewhat flexible in terms of the documentation they will accept, including accepting forms, stamps or e-mail certifications because medical providers may be too busy to generate more detailed documentation.
The EEOC has stated that since the presence of a person with COVID-19 poses a direct threat to the health of others in the workplace, employers may administer COVID-19 tests and temperature checks to returning employees. Employers may also screen new applicants for COVID-19 symptoms and take the applicant’s temperature after extending a conditional job offer. An employer may even withdraw the conditional job offer if the individual has COVID-19 or exhibits symptoms and the employer needs the applicant to start immediately. However, employers may not postpone an employee’s start date or withdraw a job offer just because the individual falls into a high-risk category, such as being over 65 or pregnant.
Employer-conducted tests and screenings must be accurate and reliable, and employers should be aware of the false positives and false negative rates associated with different types of tests. Employers may disclose the names of employees who test positive to the appropriate public health agency. Additionally, the EEOC states that temporary staffing agencies and contractors may notify employers of individuals who test positive since the employer may need to determine the extent of the individual’s contact with others at the worksite.
As a general matter, employers should effectuate infection control strategies in their workplaces, such as social distancing, regular handwashing among other measures.
This issue presents a delicate balance between the need to obtain information relating to employee safety and employee privacy regarding medical issues.