The U.S. Equal Employment Opportunity Commission (“EEOC”) recently updated guidance in its previously published pandemic guidance issued during the H1N1 influenza pandemic in 2009. Updates were issued in March 2020 and again on April 9, 2020 and April 17, 2020.
The EEOC provided updated guidance that addresses the applicability of the Americans with Disability Act (ADA) to the novel coronavirus (COVID-19) in the 2009 “Pandemic Preparedness in the Workplace and the Americans With Disabilities Act,” and in “What You Should Know About the ADA, the Rehabilitation Act, and COVID-19.” The EEOC also released a supplemental webinar titled “Ask the EEOC.”
Please also note a new Fifth Circuit case, Hewitt v. Helix Energy Sols. Grp., Inc., No. 19-20023, 2020 U.S. App. LEXIS 12554 (5th Cir. 2020), decided April 20, holding that an employee who is paid a “daily rate” is not considered as paid on a “salary basis” under the Fair Labor Standards Act (“FLSA”). The Court reversed the District Court’s grant of summary judgment to Helix, and remanded for further proceedings. The decision explains that Hewitt was paid on a daily rate—so he was paid “with” (not “without”) “regard to the number of days or hours worked. ” As a result his status was in direct conflict with the plain language of § 541.602(a)(1).
Whenever employers conduct health screenings or otherwise make decisions based on their employees’ health, the Americans with Disabilities Act (“ADA”) becomes a key consideration. The ADA regulates employer-mandated medical examinations, the medical questions employers are allowed to ask employees, and of course, the provision of reasonable accommodations to disabled individuals, including during a pandemic.
The ADA rules do apply; however, this does change slightly during a pandemic. Medical examinations have been deemed by the EEOC appropriate when an employee would pose a direct threat to others by transmitting COVID-19. Normally, such examinations would be prohibited under the ADA.
The following key takeaways for employers are provided in the EEOC guidance:
Employers Should Not:
- ask questions such as whether an employee has a compromised immune system or a medical condition that makes the employee more susceptible to COVID-19, or questions related to disabilities.
- ask questions about symptoms of COVID-19 of employees who are already working remotely and who have not interacted with coworkers, customers or clients.
Employers May:
- Ask questions about symptoms of COVID-19,
- to maintain the health integrity of their offices and to ensure that sick employees stay home.
- an employee calls in sick without giving details, in order to protect the rest of the workforce.
- Check temperatures and conduct COVID-19 screenings of current employees, and of new employees, but only after making a conditional job offer.
- If an employer has a reasonable belief based on objective evidence that a particular employee might have COVID-19, the employer may conduct a health screening only of that one employee, rather than the entire workforce.
- bar the employee from the workplace if an employee refuses to answer COVID-19 screening questions or refuses a temperature check.
Employers Should:
- Maintain any records resulting from medical screenings in a separate medical file. This should not be a part of an employee’s personnel file. It should be treated as a confidential medical record. If working remotely, medical information should be safeguarded to the greatest extent possible until it can be properly filed when you return to the workplace.
- Assure employees that their medical information will remain confidential. This may make employees more likely to comply with employer requests.
You’ve had an exposure. Now What?
Employers May:
- Send Employees Home – maintain confidentiality when a decision is made by an employer to send an employee home. This should be and remain confidential.
- Tell other employees that they were exposed to a coworker with COVID-19. The coworker in question should NOT be identified. All employees who worked in close proximity to that person should be sent home.
- Share the identity of the employee with COVID-19 only with those who have a need to know, such as a supervisor who interviews the coworker about who might have been exposed to them in the workplace.
- Teleworking – if an employee is teleworking due to having COVID-19, the employer can share the fact that the employee is teleworking but should not share the reason the employee is teleworking.
- Delay the start date of an employee who has symptoms of COVID-19. If an employer needs an employee to start working immediately, then the employer can withdraw a job offer to an employee with COVID-19.
- Request employees to stay out of work – specifically employees who recently traveled to affected areas or were exposed to a person with symptoms of COVID-19 stay out of work until a certain number of days passes without symptoms.
- Require a doctor’s clearance prior to allowing an employee to return to work.
- Ask questions to determine which staff will be unavailable without running afoul of the ADA. Be sure that the inquiry you use identifies nonmedical reasons for absence as well as medical reasons.
- Require employees to adopt infection-control practices in the workplace, such as requiring frequent hand-washing, wearing masks, maintaining six feet of distance from other employees, and related measures.
Employers Should Not:
- Specifically ask employees if they have a family member with COVID-19. This would be prohibited by the Genetic Information Nondiscrimination Act. Employers can ask, more generally, if employees have been exposed to any person with symptoms of COVID-19. The EEOC deems this type of inquiry not disability-related.
- Ask questions related to disabilities. To do so would be a violation of the ADA.
The EEOC is still unsure whether COVID-19 is a disability under the ADA, and as time progresses, its status as a disability will become clearer. Employers are not absolved of their obligations to provide reasonable accommodations during a pandemic. The COVID-19 pandemic has increased the number of requests for reasonable accommodations. It is anticipated that such requests will continue to increase if businesses reopen while the virus is not fully contained. Keep in mind, depending on how early a particular business reopens, certain employees may need to continue working from home for some period of time.
To aid in the timely facilitation of an employer’s usual reasonable accommodation processes, the EEOC encourages employers to implement temporary solutions, when needed, that enable employees to keep working while the discussion and potential provision of reasonable accommodations is pending.
Nancy Hamren helps clients navigate and negotiate the changing landscape of federal, state and local laws that apply to the workplace. This article is for general information purposes and is not intended to be and should not be taken as legal advice.