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By Adrienne Dresevic, Esq. and Arturo Trafny, Esq. of The Health Law Partners, P.C.
The U.S. Equal Employment Opportunity Commission (EEOC) recently updated its guidance regarding the COVID-19 public health emergency (PHE) and its impact on certain equal employment opportunity laws (the “COVID-19 Guidance”). The COVID-19 Guidance consists of technical assistance questions and answers pertaining to employee/employer rights during the COVID-19 PHE. The EEOC continually updates this guidance as the pandemic continues to impact the workforce.
The EEOC also re-issued guidance regarding pandemic preparedness in the workplace that identifies established Americans with Disabilities Act (ADA) principles relevant to workplace planning for pandemics (the “Pandemic Guidance”). Originally issued in 2009 during the spread of the H1N1 virus, the EEOC has re-issued the guidance due to the impact COVID-19 has had on workplaces nationwide. The Pandemic Guidance overviews ADA-compliant employer practices during a pandemic. The EEOC clarified the ADA does not interfere with employers adhering to recommendations from the CDC or other public health authorities.
Testing and/or Screening Employees for COVID-19
Typically, the ADA only permits mandatory medical testing of employees when it is “job related and consistent with business necessity.” In its COVID-19 Guidance, the EEOC acknowledges that COVID-19 testing is in line with ADA standards due to the threat an individual with the virus poses to the health of others at the workplace. To ensure the health and safety of other workers, employers are permitted to test their employees for COVID-19 prior to them entering the workplace.
Additionally, the COVID-19 Guidance permits employers to screen their employees for COVID-19 symptoms, by asking whether they are experiencing any symptoms of COVID-19. When conducting such screenings, the EEOC advises employers to rely on guidance from the Centers for Disease Control and Prevention (CDC), other public health agencies and reputable medical sources to determine what symptoms are relevant for screening employees. Employers should periodically check for updated lists of symptoms. The guidance also permits employers to take the body temperature of their employees entering the workplace. This would typically not be permitted under the ADA as it constitutes a medical examination. However, in line with precautions issued by the CDC and state/local health authorities regarding COVID-19, the COVID-19 Guidance permits employers to take an employee’s body temperature during the COVID-19 PHE.
Call Offs and Sending Employees Home
When an employee calls in sick during a pandemic, an employer may ask the employee whether they are experiencing symptoms of the pandemic virus. Further, the EEOC clarifies that employees who become ill with COVID-19 symptoms should leave the workplace. The EEOC clarified that employers may send employees exhibiting symptoms of COVID-19 under the ADA if the illness is serious enough to pose a direct threat to the workforce. Pursuant to the Pandemic Guidance, the COVID-19 PHE meets the direct threat standard under the ADA.
Protocols for Employees Returning to Work
In addition to testing and/or screening employees for COVID-19, EEOC guidance permits employers to require a doctor’s note from an employee certifying they are fit to return for duty prior to returning to work. The COVID-19 Guidance specifies that such a requirement is permitted under the ADA. Employers may also require employees to wear personal protective gear (e.g., masks and gloves) and to adhere to certain infection control practices (e.g., social distancing and hand washing protocols) upon returning to work.
Reasonable Accommodations for Employees with Disabilities
The ADA requires reasonable accommodations for individuals with disabilities, absent undue hardship on the employer. Note that it is the employee’s duty to request an accommodation. A reasonable accommodation is a change in the work environment allowing an individual with a disability to perform the job. For example, some employees may require specialized PPE (e.g., non-latex gloves, modified face masks, etc.). The employer would suffer undue hardship if the accommodation results in significant difficulty/expense for the employer. Upon receiving an accommodation request, employers should consider the nature and costs of the accommodation and resources available at the time of the request. If an accommodation would result in undue hardship, the employer should consider alternate solutions.
The COVID-19 Guidance specifies that employers must make reasonable accommodations to employees with disabilities that place them at greater risk from COVID-19. Employers may request information or medical documentation to determine whether an employee’s disability necessitates such an accommodation. The CDC has issued guidance listing conditions that place individuals at a higher risk for severe illness from COVID-19. If an employee suffers from such a condition, the employer must make reasonable accommodations to reduce the risk from COVID-19 to the employee. This may include installing Plexiglas windows to limit exposure of employees at greater risk.
Also, if an employee required a reasonable accommodation at the workplace, employers should provide the same reasonable accommodation to the employee at a telework or remote work site, absent undue hardship. For example, if an employee with low vision required a screen-reader on her office computer and her employer issues her a laptop, the employer should provide a laptop with a screen-reader.
Storage of Medical Information Pertaining to COVID-19
If an employer retains any information regarding employees’ illnesses or screenings (e.g., COVID-19 test results, daily body temperature logs, etc.), it must be maintained as a confidential medical record in compliance with the ADA. Such information must be stored separate from the employee’s personnel file to limit access to confidential information.
For more information on issues related to this article, please contact Adrienne Dresevic, Esq. by email at adresevic@thehlp.com or call (248) 996-8510.
Adrienne Dresevic, Esq, is a Founding Shareholder of The Health Law Partners, P.C., a nationally recognized healthcare law firm with offices in Michigan and New York. Practicing in all areas of healthcare law, she devotes a substantial portion of her practice to providing clients with counsel and analysis regarding compliance, Stark Law, Anti-Kickback Statute, and compliance related issues. Ms. Dresevic serves on the American Bar Association Health Law Section’s Council, which serves as the voice of the national health law bar within the ABA. Ms. Dresevic is the Budget Officer for the ABA Health Law Section and was the Past Co-Chair for the Physicians Legal Issues Conference for three years. She is licensed to practice law in Michigan and New York, and can be contacted at adresevic@thehlp.com.
Arturo Trafny, Esq, is an associate attorney at the Health Law Partners, P.C. Mr. Trafny graduated from Chicago-Kent College of Law. Practicing healthcare law, Mr. Trafny concentrates on regulatory and transactional matters.
The authors are members of The Health Law Partners, PC and may be reached at (248) 996-8510 or (212) 734-0128, or at www.thehlp.com.
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