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Bring ‘Em All Back? – Knowing Your Rights in the “New Normal”

| May 26, 2020 | Discrimination & Harassment |

As state and local economies reopen, employers across the country are cautiously welcoming employees back to their jobs, fearing a resurgence of the COVID-19 outbreak. For returning workers, the workplace will be different from before, including the extent to which their privacy will be protected, especially medical and health information.

To assist employers and employees in navigating these uncertain waters, the U.S. Equal Employment Opportunity Commission has issued guidance clarifying their respective rights and obligations. We have streamlined two EEOC publications – What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws and Pandemic Preparedness in the Workplace and the Americans with Disabilities Act – into a set of useful FAQs.

What can my employer ask about my COVID-19-related symptoms, illness, and absences?

To determine if workers have or may have COVID-19, an employer covered by the Americans with Disabilities Act (ADA) may question an employee who reports feeling under the weather at work or who calls in sick about their symptoms. Employers must treat all information about employee illness as a confidential medical record in compliance with the ADA.

An employer asking an employee why she or he did not report to work does not run afoul of the ADA because it is not considered a disability-related inquiry. Employers are always entitled to know why employees have not reported for work.

Can my employer ask about my medical condition or require me to undergo a medical exam if I don’t exhibit symptoms of the coronavirus?

The ADA prohibits employers from making disability-related inquiries or requiring medical examinations of employees without symptoms. But there’s a catch.

In an influenza pandemic like COVID-19, ADA-covered employers may have sufficient objective information from public health advisories to reasonably conclude that employees will face a direct threat if they contract pandemic influenza. Only in this circumstance may an employer make a disability-related inquiry or require a medical exam of an asymptomatic employee to identify those at higher risk of influenza complications.

In March 2020, the Centers for Disease Control and Prevention (CDC) and state and local health authorities acknowledged the risks of community spread of COVID-19 and issued a series of precautions. Consistent with these directives, an employer may take an employee’s body temperature; as with all medical information, the fact that an employee had a fever or other symptoms would be subject to the ADA’s confidentiality requirements.

Can my employer send me home from work over coronavirus concerns?

An ADA covered employer can send employees home if they display COVID-19-like symptoms during a pandemic. Because the CDC states that employees who become ill with symptoms of influenza-like illness at work during a pandemic should leave the workplace, advising a worker displaying such symptoms to stay at home is not a disability-related action.

I’ve been away from work during the pandemic and my employer requested medical documentation. Is that legal?

An employer may require an employee who has been away from the workplace during a pandemic to provide a doctor’s note certifying fitness to return to work. Such inquiries are permitted under the ADA because they would not be disability-related or, if the pandemic influenza were truly severe (like COVID-19), they would be justified under the ADA to make a disability-related request.

But is the request practical? Maybe not. Doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, your employer might consider an alternative and more flexible approach, like relying on a local clinic to provide a form, stamp, or e-mail to certifying that you do not have the pandemic virus.

I am at higher risk for infection. Can I refuse to return to work?

The CDC has indicated older adults and individuals with underlying severe medical conditions are at higher risk for serious illness from COVID-19. If you qualify as high risk, talk to your employer about an accommodation.

Under the ADA, a “reasonable accommodation” is a change in the work environment that allows an individual with a disability to have an equal opportunity to apply for a job, perform a job’s essential functions, or enjoy equal benefits and privileges of employment. According to the EEOC, employees with disabilities that put them at high risk for complications of pandemic influenza may request telework as a reasonable accommodation to reduce their chances of infection during a pandemic.

If you need an accommodation, make sure you ask for it. On May 7, 2020, the EEOC issued updated guidance on how employers should accommodate workers with medical conditions during the coronavirus pandemic. These guidelines clarify that the ADA does not require employers to take any action if an employee does not ask for an accommodation for their disability.

And if you do request an accommodation, be prepared. Your employer will likely require you to submit medical documentation from a healthcare provider to support your request.

Do I need to be high risk to refuse to return to work?

If you are not at high risk for the coronavirus but are afraid to return to the workplace because you are a caregiver for others who are ill or high risk, or because you have kids at home, you may be entitled to protected time off and pay.

Can my employer ban me from the workplace?

If an employer is concerned that a worker’s health will be risked if they return to the workplace, the EEOC has made clear that excluding that employee from the workplace violates the ADA unless the employee’s disability “poses a ‘direct threat’ to his health that cannot be eliminated or reduced by reasonable accommodation.”

The EEOC guidelines state that, if that type of accommodation does not exist, the employer must weigh other options to accommodate an employee’s disability, including a work-from-home arrangement, temporary medical leave, or reassigning the affected employee to a different position that would provide a safer work environment.

Employees should note that an employer cannot make any broad assumptions or prejudgments as to whether an employee’s condition poses a direct threat. The EEOC’s guidance instructs employers to conduct an “individualized assessment” of whether an employee’s disability poses a direct threat to her health “based on a reasonable medical judgment about this employee’s disability – not the disability in general – using the most current medical knowledge and/or on the best available objective evidence.”

EEOC regulations identify four factors employers should consider when conducting an individualized assessment to determine whether an employee poses a direct threat:

  1. The duration of the risk;
  2. The nature and severity of the potential harm;
  3. The likelihood that potential harm will occur; and
  4. The imminence of the potential harm.

Although the ADA’s “direct threat requirement is a high standard,” at this point in the pandemic, the CDC has determined that COVID-19 meets that heightened threshold. If and when the CDC and other state and local authorities revise their assessment of the spread and severity of the coronavirus, however, this could affect whether a direct threat still exists.

What will my workplace look like now?

Employers can require infection-control practices, such as regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal without implicating the ADA. Employers can also require employees to wear personal protective equipment (PPE), including face masks, face shields, gloves, and gowns. But where an employee with a disability needs a related reasonable accommodation under the ADA (for example, non-latex gloves or gowns designed for individuals who use wheelchairs), the employer should provide these as long as it does not place undue hardship on the employer.

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