The DFW Hospital Council posts guest blogs by Associate Members. The following was provided by Hall Render. The firm’s COVID-19 Resource Center can be found here.
By Robin Sheridan, attorney at Hall Render
While there has been an onslaught of new legislation related to the COVID-19 pandemic, employers don’t want to lose sight of traditional employment laws. The Fair Labor Standards Act, Family and Medical Leave Act and Title VII of the Civil Rights Act continue in full force and effect during these trying times. And now more than ever, the Americans with Disabilities Act (ADA) may arise as a challenging issue for employers.
The ADA prohibits discrimination against disabled employees and applicants, as well as employees and applicants who are regarded as disabled by the employer. Whether or not an employee infected with coronavirus is disabled under the ADA will require an individualized assessment. Some employees will experience only mild, temporary symptoms and, like a broken arm, the condition will not rise to the level of a protected disability. Others may experience such severe reactions that they will be considered disabled under the law.
Not only is it possible that an employee’s COVID-19 infection would qualify as a disability under the ADA, but even if there is no actual infection or impairment, employees who might be “regarded as” being infected (or having a “record of” infection) could also be protected under the ADA.
In response to numerous employer inquiries concerning the ADA and COVID-19, the Equal Employment Opportunity Commission (EEOC) recently revised its 2009 publication on “Pandemic Preparedness in the Workplace and Americans with Disabilities Act (ADA)” and on March 27, issued a webinar clarifying and expanding on that guidance. The guidance can be found here.
Impact on Current Employees
As a preliminary matter, the EEOC has made clear that the ADA and Rehabilitation Act allow employers to follow the Centers for Disease Control and Prevention (CDC) guidelines and suggestions, as well as those from state and local public health officials. Specifically, the EEOC advises:
• Employers may ask employees, including those that call in sick, if they are experiencing symptoms or if they have been tested for the virus. For COVID-19, these symptoms include fever, chills, cough, shortness of breath and sore throat. Although considered a medical examination, employers are permitted to measure employees’ body temperatures at the workplace during a pandemic. Employers must maintain this information as a confidential. An employee who refuses to permit the employer to take their temperature may be barred from the physical workplace.
• Under the Genetic Information Nondiscrimination Act, an employer may not make employment decisions based on the health of an employee’s family member. Therefore, the employer should not ask an employee who is physically coming into the workplace whether they have family members who have COVID-19 or symptoms. The employer may ask whether an individual has had contact with anyone that has been diagnosed or has symptoms.
• Employees who become ill with symptoms of COVID-19 should be instructed to leave the workplace immediately and may be instructed to stay home until the period of non-contagion has passed.
• When an employee is ready to return to work, an employer may require a return to work certificate to confirm fitness for duty. As a practical matter, employers are instructed to be flexible about what the documentation might look like given the current strain on health care providers.
• To protect co-workers, vendors or visitors, employers can advise co-workers that some employee has been diagnosed with COVID-19; however, the employer cannot reveal the identity of the employee.
• An employer may not exclude from the workplace employees 65 or older, pregnant employees and someone without COVID-19 solely because the CDC has identified this group as a higher risk of severe illness. The Age Discrimination in Employment Act and Title VII, respectively, prohibit employers from differing treatment due to the age/pregnancy.
Impact on Applicants
If an employer is in the hiring process, they may screen job applicants for symptoms of COVID-19, including taking the applicant’s temperature, after making a job offer. However, the employer must ensure all entering employees for the same job are subject to the same screening process. Additionally, an employer may delay a start date or withdraw a job offer because the individual cannot safely enter the workplace.
Employers should be aware that even in the current pandemic environment, if a disability interferes with an employee’s (or applicant’s) ability to perform the functions of their job, an employer is generally required to provide a reasonable accommodation to that employee. For example, a disabled employee may need extra breaks, or special tools, in order to perform their job. One exception is when the employee poses a direct threat. According to the ADA, a “direct threat” is “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” If an employee or applicant with a disability poses a direct threat despite reasonable accommodation, he or she is not protected by the nondiscrimination provisions of the ADA.
The ADA requires that the employer objectively assess whether an employee poses a direct threat in the workplace based upon factual information, “not on subjective perceptions [or] irrational fears.” The EEOC’s regulations identify four factors to consider when determining if an employee poses a 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.
Based upon findings of the CDC and public health authorities as of March 2020, the EEOC has announced that the COVID-19 pandemic meets the direct threat standard. Accordingly, there is no question that a significant risk of substantial harm would be posed by having someone with COVID-19, or symptoms of it, present in the workplace. Therefore, an employer can rely on the EEOC’s finding of direct threat in applicable situations.
Robin Sheridan is an attorney with Hall Render, the largest health care-focused law firm in the country.