On March 21, 2020, the Equal Employment Opportunity Commission issued updated guidance on the impact that the COVID-19 coronavirus is having in the workplace entitled “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act.” The document was originally issued in 2009, during the spread of the H1N1 virus, and has been issued to incorporate updates regarding the COVID-19
pandemic.
The publication addresses some common areas of concern for employers, including what strategies employers can take that are consistent with the ADA and with current CDC and state/local guidance for keeping workplaces safe during the COVID-19 pandemic. While school districts are currently closed, many still have employees reporting to work, and some districts may look to reopen in the coming weeks.
In summary, the EEOC has confirmed that during the COVID-19 pandemic employers can do the following without violating the provisions of the Americans with Disabilities Act (ADA) or the Rehabilitation Act:
- ask employees if they are experiencing symptoms of COVID-19, provided that the information is maintained as a confidential medical record;
- measure employees’ body temperature;
- tell employees who become ill with symptoms of COVID-19 to stay home (or leave work);
- require employees returning to work from travel during a pandemic to provide a doctor’s note stating they are fit for duty;
- 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; and
- withdraw a job offer when it needs the applicant to start immediately but the individual tests positive for COVID-19 or has symptoms of it.
Significantly, the EEOC guidance acknowledges that COVID-19 constitutes a “Direct Threat.”
Direct threat is an important ADA concept during an influenza pandemic.
What this means is that if an employer has a reasonable belief that an employee has been exposed to COVID-19 or otherwise poses a “Direct Threat”, it may require the employee to stay home and not report to work. Assessments of whether an employee poses a direct threat in the workplace must be based on objective, information, "not on subjective perceptions . . . [or] irrational fears"
about a specific disability or disabilities. Likewise, any decisions regarding which employees should be placed on mandatory leave should not speculation or concern based on an employee’s race, ethnicity, or national origin. All preventative measures should be enforced uniformly and consistently.
A finding of "direct threat" must be based on reasonable judgment that relies on the most current medical knowledge and/or the best available evidence such as objective information from the CDC or state or local health authorities. www.cdc.gov. See “Helpful Links” below for more resources.
The finding must be based on an individualized assessment of the individual’s present ability to safely perform the essential functions of the job, after considering, among other things, the imminence of the risk; the severity of the harm; and the availability of reasonable accommodations to reduce the risk.
Before concluding that an individual poses a direct threat, the employer must determine whether a reasonable accommodation could reduce the risk below the direct threat level. Providing an employee with additional leave time and/or allowing the employee to work from home may be a reasonable accommodation.
Frequently Asked Questions
1. How do I determine whether an employee poses a risk?
Districts should require employees to notify human resources, a nurse or a designated administrator if they have: i) recently traveled to a Level III country, ii) had close contact with others who have traveled to at-risk countries, iii) had contact with a family member confirmed to have COVID-19, and/or iv) traveled on a cruise ship or to cities or states and/or other locations, including crowded places, identified
as high risk.
2. What kind of questions am I allowed to ask?
Administrators may ask:
- whether an employee has been experiencing symptoms of COVID-19.
- whether an employee has recently traveled or been in close contact with someone who recently traveled to any of the Level III countries, or a city or state, or any other location (including crowded places) identified as high risk.
- whether an employee has spent time around someone confirmed to have COVID-19.
Administrators should refrain from asking questions about underlying medical conditions and should treat any information about potential symptoms of Coronavirus as confidential.
Caveat: if the employee voluntarily reveals a medical condition or disability that would make them more susceptible to contracting Coronavirus, treat the request as one for accommodation under the ADA, request medical documentation from the employee and engage in the interactive process.
3. Can I require employees to stay home if I am worried that they may have been exposed to Coronavirus?
Yes, if an administrator has sufficient information to believe that an employee may pose a risk to the health of other employees, including based on the information described in question 1, the district could require the employee to remain at home for the 14-day incubation period. Any decisions regarding which employees should be placed on mandatory leave should only be based on the above information, and not speculation
or concern based on an employee’s race, ethnicity, or national origin. All preventative measures should be enforced uniformly and consistently.
4. Can the district pay employees for days they are required to take off if employees exhaust all their leave time?
If a district would like to compensate employees placed on mandatory leave, the board may decide to pass a resolution to pay employees who have lost pay due to the pandemic. To avoid the prohibition on gifts of public funds, the board must identify a legitimate public purpose for the expenditure. For example, if the leave is taken to protect the health of students, staff, and the local community, the board should
identify this purpose in a resolution authorizing compensation for those employees. Sample resolutions are posted on our COVID-19 resource page at saraleonlaw.com.
5. What if the employee refuses to stay home?
If you do not have evidence of a potential risk based on questions you asked and it is possible for the employee to work from home during the self-quarantine, ask them to do so.
If you do not have evidence of a potential risk based on the questions you ask, you can certainly encourage the employees to work remotely and/or self-quarantine if possible. This may be done by offering extended paid leave and/or sick leave.
Finally, although not usually allowed, because the CDC and state/ Local health authorities have acknowledged the community spread of COVID-19, employers (and districts) can now measure an employee’s temperature without violating the ADA.
6. Confidentiality
Ensure information related to employees’ need for leave remains confidential. If you have an employee with a confirmed case, you should inform coworkers that they may have been exposed, but administrators should not identify or explain to other employees the reasons an employee is not at work. In addition, any medical related documents should be kept in a location separate from employees’ personnel files.
Helpful links:
