Updated 7/1/20 with new DOL Guidance on COVID-19 testing. See the “Medical Examination” section below for updates.
With the backdrop of the coronavirus (COVID-19), employers may be in the process of designing “return to work” policies that ensure the safety of their employees and comply with workplace employment and anti-discrimination laws. In this article, we walk through how certain COVID-19 return to work policies may implicate the following federal workplace anti-discrimination laws:
- The Americans with Disabilities Act (ADA), which prohibits employment discrimination based on a disability and:
- Prohibits an employer from making disability-related inquires or conducting medical examinations unless they are job-related and consistent with a business necessity;
- Prohibits employers from excluding disabled individuals from the workplace unless they pose a “direct threat;”
- Requires reasonable accommodation for disabled individuals, unless it places an undue hardship on the employer;
- Requires employers to keep all medical information confidential, even if that information in unrelated to a disability;
- Title VII of the Civil Rights Act, which prohibits discrimination based on race, color, national origin, religion, and sex (including pregnancy);
- The Age Discrimination in Employment Act, which prohibits discrimination against individuals ages 40 or older; and
- The Genetic Information Non-Discrimination Act (GINA), which prohibits employers from using an individual’s genetic information when making employment decisions and prohibits asking employees medical questions about family members.
The federal agency that enforces these anti-discrimination laws, the Equal Employment Opportunity Commission (EEOC), has released guidance on how employers can comply with these laws while navigating COVID-19 health and safety concerns.
Based on the EEOC’s FAQ, the webinar they held on March 27, 2020 (“EEOC Webinar”), updated guide on Pandemic Preparedness in the Workplace (“Pandemic Preparedness”), and the Centers for Disease Control’s (CDC) interim guidance on how employers can plan and respond to COVID-19, we have outlined what employers can and cannot do (as the law currently stands at the time of this article) regarding the following:
- COVID-19 related inquiries and medical testing;
- Hygiene in the workplace;
- Reasonable accommodations and job modifications;
- Hiring and onboarding; and
- Confidentiality of medical information and permitted disclosures.
1. COVID-19 Inquiries and Medical Examinations
Under the ADA, employers can only ask disability-related inquires or conduct medical examinations if they are job-related and consistent with a business necessity, which includes the reasonable belief that an employee will pose a “direct threat” from their medical condition.
The CDC has determined that having an individual with COVID-19, or symptoms of the virus, present at the workplace would present a “direct threat.” Thus, employers can make disability-related inquiries or conduct medical examinations related to COVID-19 for employees present at their workplace. (See Question G.1, EEOC FAQ).
Generally, employers should subject all similarly situated employees to the same inquiries or medical examinations. Employers can subject certain employees (as opposed to all employees) to questioning or medical examinations only if an employer has a reasonable belief based on objective evidence that an employee has COVID-19. (See Question 3, EEOC Webinar).
For example, if an employer notices an employee has a persistent hacking cough, they can ask them whether they have been to the doctor and whether they think they have or may have COVID-19 (because a cough is a symptom of COVID-19).
If an employee refuses to answer valid COVID-19 related inquiries or refuses to have their temperature taken or undergo a COVID-19 test (per the employer’s policy), employers are permitted to bar their entry into the workplace because they may pose a “direct threat” to the workplace. (See Question 1, EEOC Webinar).
COVID-19 Related Inquiries
What employers can ask:
- For employees who are physically entering the workplace, employers can ask the following:
- Whether employees have COVID-19;
- Whether employees have symptoms associated with COVID-19;
- Important note: Employers should rely on the CDC, other public health authorities, and reputable medical sources when determining which symptoms they should ask their employees about. The CDC has stated that fever, chills, cough, shortness of breath, sore throat, loss of smell or taste, and gastrointestinal problems are currently recognized symptoms of COVID-19. (See Question A.2, EEOC FAQ).
- Whether employees have been tested for COVID-19; or
- Whether employees have been in contact with anyone who has been diagnosed with or had symptoms of, COVID-19. (See Question 1, EEOC Webinar).
- For employees who have been away from the workplace, employers can require a doctor’s note to certify that they are fit to return to work and/or that they do not have COVID-19. (See Question A.5, EEOC FAQ).
- For employees who report feeling ill at work, or who call in sick, employers may ask employees whether they are experiencing symptoms of COVID-19. (See Question A.1., EEOC FAQ).
- For employees absent from work, employers can ask the reason they missed work, even if the employer suspects it is for a medical reason. (See Question 15, Pandemic Preparedness).
- For employees returning from travel (even personal travel), employers can ask whether employees visited specified locations that the CDC or local health officials have listed as COVID-19 “hotspots” that require a period of self-quarantine. (See Question 8, Pandemic Preparedness).
Employers cannot or should not ask:
- Whether an employee who does not have COVID-19 symptoms has any pre-existing medical conditions that would make them at high-risk or vulnerable for COVID-19. (See Question 9, Pandemic Preparedness).
- It is important to note that employees can voluntarily disclose that they have a pre-existing medical condition that would make them high-risk or vulnerable to COVID-19. If employees voluntarily disclose this information, employers must keep this information confidential and provide reasonable accommodations to this employee, if requested (more information on reasonable accommodations below).
- Employees who are teleworking from home whether they have COVID-19 or its symptoms, because those employees would not pose a “direct threat” to their workplace. (See Question 1, EEOC Webinar).
- Employers would be allowed to ask employees teleworking from home if they had COVID-19 or its symptoms if that information is necessary, such as for requesting emergency paid sick leave under the Families First Coronavirus Response Act (FFCRA). For additional information on the recordkeeping requirements for FFCRA, see our blog.
- Whether employees have family members who have COVID-19 or who have symptoms of COVID-19 because it may violate the GINA (rather, employers should ask whether employees may have had contact with anyone who had COVID-19 or its symptoms). (See Question 4, EEOC Webinar).
Updated 7/1/20 with DOL FAQs. Under the Families First Coronavirus Response Act (FFCRA), group health plans are required to provide COVID-19 testing without any cost sharing (i.e. for free) for individuals with symptoms of COVID-19 or who have been exposed to COVID-19. However, testing conducted to screen for general workplace health and safety (such as employee “return to work” programs) and not primarily for the individualized diagnosis and treatment of COVID-19 is not covered under the FFCRA. Therefore, employers cannot necessarily rely on employees’ group health plans to cover COVID-19 testing for free if the testing is primarily used for the purpose of a “return to work” program.
What employers can do:
- Screen employees using temperature checks (see Question A.3, EEOC FAQ) or COVID-19 tests (see Question A.6, EEOC FAQ) before permitting them to enter the workplace.
- Employers should ensure that the COVID-19 tests they use are accurate and reliable and they should be aware of the incidence of false-positives or false-negatives associated with the tests. (See Question A.6, EEOC FAQ).
- Important Note: Some states may require employers to provide a notice to employees prior to screening them. For instance, California requires employers to notify employees and job applicants what categories of personal information they collect from them and what the information is used for under the California Consumer Privacy Act.
- If an employer has a reasonable belief based on objective evidence that an employee has COVID-19, an employer can require that a particular employee undergo a medical examination (e.g. a temperature check or COVID-19 test). (See Question 3, EEOC Webinar).
What employers cannot do:
- Require medical examinations to look for pre-existing conditions that would make an individual at high-risk for COVID-19.
- Require medical examinations for individuals who are not physically working at the employer’s workplace, such as those that telework.
2. Hygiene in the Workplace
What employers can do:
- Require employees who have symptoms of COVID-19 to stay at home. (See Question A.4, EEOC FAQ).
- Send employees home who have COVID-19 or symptoms associated with COVID-19. (See Question A.4, EEOC FAQ).
- Require employees to self-report if they are experiencing symptoms of COVID-19. (See Question G.1, EEOC FAQ).
- Require infection control practices such as regular hand washing, coughing and sneezing etiquette, proper tissue usage and disposal, and social distancing. (See Question G.2, EEOC FAQ and Question 15, Pandemic Preparedness).
- Require employees to wear personal protective equipment, such as gloves and masks. (See Question 12, Pandemic Preparedness).
- Employers must provide reasonable disability or religious accommodation for applicable employees (as discussed in the Reasonable Accommodation section below). (See Question G.2, EEOC FAQ).
What employers cannot do:
- Exclude employees who are 65 or older and who do not have COVID-19 or symptoms of COVID-19 from the workplace. (See Question 11, EEOC webinar).
- Lay off or furlough pregnant employees do not have COVID-19 or symptoms of COVID-19. (See Question 13, EEOC webinar).
3. Reasonable Accommodations and Job Modifications
The ADA requires employers to provide reasonable accommodations for individuals with disabilities unless it places an undue hardship on an employer. A reasonable accommodation is a change in the work environment that allows an individual with a disability to have the equal opportunity to perform a job’s essential functions.
Employers are not required to provide a reasonable accommodation if it causes undue hardship, or significant difficulty or expense, when considering the nature and cost of the accommodation, the resources available to the employer, and the operation of the employer’s business. Please note that we highly recommend that employers wishing to rely on the undue hardship exception speak with legal counsel.
Finally, it is important to note that the EEOC has stated that it remains unclear at this time whether COVID-19 is or could be a disability protected under the ADA.
Employers must provide the following accommodations:
- If an employee informs their employer that they have a disability (including mental illnesses or disorder) that is exacerbated by the COVID-19 pandemic or that puts them at greater risk of severe illness if they contract COVID-19, and asks for a reasonable accommodation, their employer must provide a reasonable accommodation, unless it poses an undue hardship. (See Question 17, EEOC webinar).
- Employers can ask questions to determine whether an employee’s condition is a disability, discuss how the requested accommodation would enable the employee to keep working, explore alternative accommodations that may meet the employee’s needs, and request medical documentation, if needed. (See Questions D.2 and D.6, EEOC FAQ).
- If an employer requires employees to wear protective gear or observe infection control practices, they must provide reasonable accommodations for employees with disabilities (e.g. modified face masks for interpreters who communicate with an employee who uses lip reading) and for employees who need a religious accommodation under Title VII (e.g. modified equipment due to religious attire). (See Question G.2, EEOC FAQ).
Employers do not need to provide the following:
- Employers do not need to provide a particular accommodation if it poses undue hardship, or “significant difficulty or expense,” to the employer. (See Question D.9, EEOC FAQ).
- Employers can consider the difficulty or expense in light of the COVID-19 pandemic, which may include the difficulty acquiring or delivering certain items and the employer’s constrained budgets or resources. (See Questions D.10 and D.11, EEOC FAQ).
- If a particular accommodation poses an undue hardship, employers should work with their employees to determine if there is an alternative accommodation that can be provided and does not cause such difficulty/expense. We suggest employers in this circumstance further consult with legal counsel.
- The ADA only requires employers to provide accommodations to employees for their own disability. Thus, employers are not legally required to provide a reasonable accommodation for employees who live in the same household as someone who has a disability that causes them to be at a greater risk of severe illness if they contract COVID-19. However, employers who do provide such accommodation to employees in this situation should provide the same accommodation to other similarly situated employees. (See Question 18, EEOC webinar).
For additional guidance around reasonable accommodations and job modifications, see questions 14-21 in the EEOC webinar.
4. Hiring and Onboarding
Generally, the ADA prohibits employers from discriminating against applicants with disabilities when hiring.
What employers can do:
- Screen job applicants for COVID-19 symptoms (e.g. taking an applicant’s temperature) after making a conditional job offer. If employers implement this screening, they must screen all those with the same type of job. (See Questions C.1 and C.2, EEOC FAQ).
- Delay the start date of a new hire if they have COVID-19 or are displaying symptoms of COVID-19. (See Questions C.3, EEOC FAQ).
- Withdraw a job offer if the individual has COVID-19 or has symptoms of COVID-19 and the employer needs the individual to start immediately. (See Questions C.4, EEOC FAQ).
What employers cannot do:
- Withdraw a job offer because an individual is over the age of 65 or is pregnant (and thus at a higher risk of a serious health condition from COVID-19). (See Question C.5, EEOC FAQ).
5. Confidentiality of Medical Information and Permitted Disclosures
The ADA requires employers to keep all employee medical information confidential, even if that information is unrelated to a disability. The ADA has strict rules on how medical records are kept, who can have access to those records, and when employers can disclose that information.
What employers must do:
- Store all medical information separate from employees’ personnel files. (See Question B.1, EEOC FAQ).
- Medical information includes testing, daily temperature logs, statements of a COVID-19 diagnosis, and answers to COVID-19 inquires. (See Question B.2, EEOC FAQ).
- Limit access to medical files and keep medical information confidential, even if that information is unrelated to a disability (unless subject to an exception, as outlined below).
What employers can do:
- Disclose an employee’s COVID-19 diagnosis to appropriate employer officials (i.e. the employer representatives that are responsible for handling such matters, such as HR), so they can take action consistent with CDC guidelines. (See Question 5, EEOC webinar).
- Employers should limit the information to only those that “need to know” and should take steps to limit who knows the employee’s identity.
- Employers should take efforts to determine which employees have been in contact with the diagnosed employee so they can notify those employees of potential COVID-19 exposure (but the EEOC specifically points out that this notification does not require the disclosure of the diagnosed employee’s identity).
- Contractors and temporary staffing agencies that place individuals at an employer’s workplace can notify the employer if they learn that an individual placed at their worksite has COVID-19. (See Question B.4, EEOC FAQ).
- Disclose the name of an employee with COVID-19 to public health authorities. (See Question B.3, EEOC FAQ).
What employers cannot do:
- Employers cannot broadly disclose the identity of employees diagnosed with COVID-19 to their entire workforce (employers can say “someone at this location” or “someone on the 4th floor” was diagnosed with COVID-19). (See Question 8, EEOC webinar).
Employer Action Items
Employers are still required comply with various employment and anti-discrimination laws when implementing measures to protect their employees from COVID-19. Employers should be careful to follow these laws when designing a “return to work” policy for their workforce.
Employers should keep in mind that guidance from public health authorities is likely to change as the COVID-19 pandemic evolves. Therefore, employers should be apprised of the most up-to-date information when making decisions on how they will maintain workplace safety.
- EEOC: Coronavirus and COVID-19
- EEOC: What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws
- EEOC: Pandemic Preparedness in the Workplace and the Americans With Disabilities Act (Updated March 21, 2020)
- CDC Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19)
- CDC COVID-19 Employer Information for Office Buildings
- DOL FAQs on COVID-19 Testing
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