Employers may ask employees certain questions about their health
By Maura Mazurowski
BridgeTower Media Newswires
RICHMOND, VA — COVID-19 was declared a nationwide pandemic on March 11. In a matter of weeks, the novel coronavirus became an all-consuming global crisis causing an unprecedented societal and business upheaval. Businesses have shut down. Workers have been let go. Remote working has been brought front and center like never before, both for the safety of employees and business continuity.
Regardless of profession or industry, the COVID-19 outbreak has affected all American workers in some way. And while social distancing is the best practice for reducing the spread of the virus worldwide, some individuals have no choice but to continue going to work.
This is an unfamiliar time, and discussing the coronavirus can be uncomfortable. But having tough conversations about the virus may be necessary in “flattening the curve.”
There are a number of steps that employers can take to lessen the probability of the spread of the virus. Last month, the Occupational Safety and Health Administration, or OSHA, issued guidance regarding the preparation of workplaces for COVID-19 and the isolation of potentially infectious individuals as a critical step in protecting workers, customers, visitors and others at a worksite.
“The General Duty Clause of the federal Occupational Safety and Health Act imposes a legal duty on employers to provide a safe place to work,” said Norfolk employment attorney John Bredehoft. “Arguably, then, not only do employers have the ability to make COVID-19-related inquiries in the workplace, but employers may also have a legal responsibility to do so.”
The U.S. Equal Employment Opportunity Commission, or EEOC, has updated a 2009 guidance to the Americans with Disabilities Act that was published during the spread of the H1N1 virus, more commonly known as the swine flu. The new document includes plans regarding the COVID-19 pandemic.
The updated guidance “identifies established ADA principles that are relevant to questions frequently asked about workplace pandemic planning.” Simply put, under the ADA, it is plain and clear that employers may ask employees certain questions about their health during this time.
Bredehoft’s firm, Kaufman & Canoles PC, broke down those guidelines for their clients. Virginia Lawyers Weekly has further simplified their breakdown to help you navigate how to handle these difficult conversations at your firm.
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What can (and should) I ask my employees about their health?
The EEOC made four major changes to the ADA guidance regarding communications between employers and their employees to help lessen the probability of the spread of the virus.
Many of these changes, however, seem counterintuitive – so much so that Bredehoft has had clients call in to confirm they won’t be breaking the rules of the Health Insurance Portability and Accountability Act, or HIPAA, if they ask an employee about a cough they’re exhibiting at work.
Bredehoft assures that such inquiries are allowed.
“You can ask them about their fever. You can ask if they’re experiencing a dry cough or respiratory issues or other symptoms of COVID-19,” Bredehoft said, noting that concerns about HIPAA should not stop employers from making proper inquiries about their employees’ health status during this time.
In addition to asking employees if they are experiencing symptoms of the pandemic virus (i.e. fever, chills, cough, shortness of breath or sore throat) the EEOC has taken the following positions in favor to stop the spread of the virus:
Employers may ask new applicants about their health
One of the biggest, and perhaps most unusual, updates to the ADA guidelines is that an employer may require new employees to have a medical examination to determine their general health status after offering them a position.
They may also rescind the job offer if the new employee tests positive for the virus, according to the ADA.
“This is an interesting change, because the EEOC has always been solicitous,” Bredehoft said. “But you can even require new applicants to test negative before hiring them.”
That’s because, according to the ADA guidance, the coronavirus has been categorized as a direct threat, i.e. “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 individual with a disability poses a direct threat despite reasonable accommodation, he or she is not protected by the nondiscrimination provisions in ADA guidelines.
“Based on guidance of the CDC and public health authorities as of March 2020, the COVID-19 pandemic meets the direct threat standard,” according to the ADA guidance.
However, an employer may not rescind a job offer made to an applicant if it is revealed that they have a pre-existing medical condition that puts them at high-risk of contracting COVID-19.
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Employers may require employees to go home
The Centers for Disease Control and Prevention states that employees who have symptoms of COVID-19 should leave the workplace.
The ADA guidance does not prohibit employers from following this advice.
“The CDC states that employees who become ill with symptoms of influenza-like illness at work during a pandemic should leave the workplace.,” the ADA guidelines read. “Applying this principle to current CDC guidance on COVID-19, this means an employer can send home an employee with COVID-19 or symptoms associated with it.”
Similarly, an employer can require employees to telework during this time regardless of whether or not they are symptomatic of COVID-19 as a preventative measure to limit the spread of the virus.
Employees with disabilities that put them at high-risk for contrasting the virus may also request telework to reduce their chances of infection.
Employers may inquire about an employee’s travels
ADA guidelines do not require employers to wait until an employee develops COVID-19 symptoms before asking questions about exposure to the pandemic during a recent trip because they would not be “disability-related inquiries.”
“So if your employee just came back from Milan, you can, and probably should, ask them to stay home for two weeks,” Bredehoft said.
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Taking an employee’s temperature
Though employers should be mindful that some people with COVID-19 do not have a fever, updated EEOC guidelines authorize them to take an employee’s temperature at work.
They are able to take a customer’s temperature before allowing them into their place of business, as well – an authorization that Bredehoft said some employees have been uncomfortable enforcing. He said that shortly after the EEOC update, a client sought advice regarding a contracted security guard who refused to ask people if they were sick before allowing them into a facility with many “high risk individuals.”
“The security force thought that was wrong to ask. The client ended up having to fire them because those questions can and should be asked at this time,” Bredehoft said.
Employers may let non-complying employees go
Bredehoft assures that an employer will not be penalized for firing an employee who does not comply with precautionary measures related to COVID-19.
“If your employees do not allow you to take their temperature, if they don’t stay home, if they give you any pushback on that, you can discipline or fire them. That’s perfectly acceptable,” Bredehoft said.
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“Be gentle”
Bredehoft said that there are a lot of uncertainties for employers and employees alike during this time. And as new laws and regulations continue to be introduced in response to the coronavirus outbreak, he reminds employers to be patient with their workers during this strange time.
“My advice to employers is to be gentle. If people need a few extra days to protect your workforce, give it to them. If people want to work from home, let them,” he said “You want them to stay home and be happy...
Otherwise instead of just one employee infected, it’s everyone.”
