When encouraging employees to wash their hands is not enough!

As the COVID-19 virus spreads rapidly throughout the world, and the possibility of a pandemic declaration inches closer each day, much of the advice to employers so far has focused on generic "good hygiene" recommendations from health departments. This advice is of limited utility for employers who have already faced or will soon confront coronavirus cases in their workforce. Companies and government agencies are scrambling to keep up, and difficult but nuanced decisions must be made now. "Wash your hands" simply won't cut it when you have a confirmed COVID-19 case in your midst.

Baker McKenzie's COVID-19 Rapid Response Team takes the opposite approach – providing practical, jurisdiction-specific guidance that employers can use to deal with their most pressing COVID-19 issues. This client alert supplements our extensive guidance in our Coronavirus Resource Center, by providing US employers with specific responses to common questions about the virus.

This alert is based on lessons learned in past pandemics. After the H1N1 outbreak in 2009 rose to the level of a pandemic, the EEOC issued an employer resource titled "Pandemic Preparedness in the Workplace and the Americans with Disabilities Act." We have updated the EEOC's 2009 guidance to provide employers with answers on what they can and cannot do in addressing the COVID-19 epidemic, in the form of a FAQ and examples.

The FAQ focuses on the Americans with Disabilities Act ("ADA") because the ADA is the primary law regulating medical examinations and inquiries for US-based applicants and employees. For example, the ADA and state discrimination statutes, which generally protect applicants and employees from disability discrimination, regulate:

  • What questions an employer may ask an employee who calls in sick, in order to protect the rest of its workforce when a pandemic appears imminent?
  • Whether employers may require employees to submit to body temperature testing, and when?
  • Whether an employer may require employees to stay home if they have symptoms of the pandemic virus?
  • When employees want to return to work, whether employers may require the employees to provide health care provider notes certifying their fitness for duty?

To be sure, other federal, state and local laws govern health-related issues in the workplace, such as the OSHA-mandated obligation to provide a safe workplace for employees or protective equipment and procedures for certain positions, the National Labor Relations Act's collective bargaining obligations, or leave laws such as the Family and Medical Leave Act. Those laws should not be disregarded, but the crux of the matter for most employers today is whether and when testing and medical inquiries are permitted. Such questions fall under the ADA's umbrella if the employer has 15 or more employees (and is therefore covered by the ADA).

The ADA is relevant for three reasons: (1) the ADA regulates disability-related inquiries and medical examinations for all applicants and employees, including those who are not disabled; (2) the ADA prohibits covered employers from excluding individuals with disabilities from the workplace for health or safety reasons unless they pose a "direct threat" to themselves or others, which means a significant risk of substantial harm even with reasonable accommodation; and (3) the ADA requires reasonable accommodations for disabled individuals during a pandemic, unless providing an accommodation would constitute an undue hardship. And with that ….

Before a pandemic is declared, what can we do to prepare?

Q: I heard that COVID-19 most severely impacts persons with underlying health conditions, including those with compromised immune systems or chronic respiratory illnesses. Before a pandemic or local health emergency has been declared, can I ask my employees if they have underlying health conditions that the CDC or WHO says could make them more susceptible to COVID-19 complications?

A: No. Asking an employee to disclose a compromised immune system or a chronic health condition is a disability-related medical inquiry because the response is likely to disclose the existence of a disability. The ADA does not permit such inquiries in the absence of objective evidence that pandemic symptoms will cause a direct threat. Such evidence is typically lacking before a pandemic / health emergency occurs.

While there is much debate about when a pandemic should be declared, health experts generally agree that a "pandemic" is a global "epidemic" in which there is sustained human-to-human transmission of the virus worldwide, with the virus no longer contained to specific geographic regions. The declaration of a pandemic describes the breadth of the virus's spread, but does not describe its severity.

This is an important distinction when evaluating whether an infected employee constitutes a "direct threat" in a workplace. Under the ADA, a "direct threat" means "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 poses a direct threat despite reasonable accommodation, he or she is not protected by the non-discrimination provisions of the ADA.

Q: How can I plan for employee absences and staffing shortages if I can't ask employees about their underlying health conditions before a pandemic is declared?

A: You can ask questions that are not disability-related. A question is not disability-related if it asks about potential non-medical reasons for absences during a pandemic (e.g., lack of public transportation) instead of just medical reasons (e.g., chronic illnesses that increase the risk of complications). The question should be posed so that employees only answer "yes" or "no" without specifying the factor(s) that apply to them. The answer need not be anonymous.

Below is a sample ADA-compliant survey published by the EEOC to plan for employee absenteeism:

ADA-COMPLIANT PRE-PANDEMIC EMPLOYEE SURVEY

Directions: Answer "yes" to the whole question without specifying the factor that applies to you. Simply check "yes" or "no" at the bottom of the page.

In the event of a pandemic, would you be unable to come to work because of any one of the following reasons:

  • If schools or day-care centers were closed, you would need to care for a child.
  • If other services were unavailable, you would need to care for other dependents.
  • If public transport were sporadic or unavailable, you would be unable to travel to work.
  • If you or a member of your household fall into one of the categories identified by the CDC as being at high risk for serious complications from the COVID-19 virus, you would be advised by public health authorities not to come to work (e.g., pregnant women; persons with compromised immune systems; older people; people with certain underlying health conditions like heart disease, lung disease and diabetes).

Answer: Yes_______

Answer: No________ .

Q: Can I require new hires to submit to post-offer medical exams to determine their general health status?

A: Yes, so long as: (1) all new hires in the same job category are required to complete the same medical examination and (2) medical information from the examination is maintained in a separate medical file and is treated as a confidential medical record.

Example A: A fabrics importer employer implements a pandemic plan after the WHO and CDC confirm that a pandemic may be imminent because COVID-19 is infecting people in multiple countries, but has not begun "community spread" in North America. Much of the employer's international business is in the affected regions. The employer announces that all newly-hired employees who will be required to travel to and work in affected regions must undergo medical examinations that include procedures to identify medical conditions that the CDC associates with an increased risk of complications from COVID-19. Because the employer administers the medical exams post-offer to all newly hired employees in the same job categories, the medical exams are ADA-compliant.

Q: If a post-offer medical examination reveals that an applicant has a medical condition that puts her at increased risk of complications from COVID-19, can I rescind the applicant's job offer?

A: No, unless the applicant would pose a "direct threat," based on reasonable medical judgment that relies on the most current medical knowledge and/or the best available evidence such as objective information from the CDC or state or local health authorities. The finding must be based on an individualized assessment of the individual's present ability to safely perform the essential functions of the job, after considering, among other things, the imminence of the risk; the severity of the harm; and the availability of reasonable accommodations to reduce the risk. Before concluding that an individual poses a direct threat, the employer must determine whether a reasonable accommodation could reduce the risk below the direct threat level.

Example B: The same fabrics importer employer offers an applicant an office position at its US headquarters. The position does not involve regular contact with employees who travel to the affected virus regions. The applicant's post-offer medical examination (which is the same as the examination given to all US headquarters employees) reveals that the applicant has a compromised immune system due to recent cancer treatments. Given the fact that the position does not involve regular contact with employees who travel to the affected region, and that COVID-19 has not spread to North America, the applicant likely would not face a significant risk of contracting the virus at work and does not pose a "direct threat" to himself or others in this position. Under the ADA, it would be discriminatory to rescind the applicant's job offer based on the fear or possibility of a pandemic.

Q: Can I prohibit employees from traveling to non-restricted areas for vacation?

A: Employers generally may not regulate employees' lawful off-duty conduct during non-work hours. A federal appellate court recently held that a company's termination of an employee who planned to travel for personal reasons to a region of Africa experiencing an Ebola outbreak – because the employer feared the employee would become ill and infect other employees upon her return – did not violate the ADA. The employer in that case acted based on a potential, future disability, which the court held is not protected by the ADA. While the employer may have been acting on fear rather than facts, employers generally should not impose restrictions on employees' travel to non-restricted areas for personal reasons. Instead, employers should educate their workforces about the potential dangers associated with travel during a pandemic.

A pandemic has been declared: how can we protect our workplace and employees?

Q: Can I send employees home if they display influenza-like symptoms during a pandemic?

A: Yes. The CDC and WHO have stated that employees who become ill with symptoms of influenza-like illness at work during the COVID-19 epidemic should leave the workplace. Advising such workers to go home is not a disability-related action if the illness is akin to seasonal influenza or the COVID-19 virus. You can also send an employee home under the ADA if the illness is serious enough to pose a direct threat. But if your workforce is unionized, make sure you consider your CBA-related obligations.

Q: During a pandemic, how much information can I request from employees who report feeling ill at work or who call in sick?

A: You may ask such employees if they are experiencing COVID-19-like symptoms, such as fever or chills and a cough or shortness of breath. You must keep all information about employee illness confidential in compliance with the ADA.

These inquiries are not disability-related. If a pandemic becomes severe, the inquiries, even if disability-related, are justified by a reasonable belief based on objective evidence that the severe form of COVID-19 poses a direct threat.

Q: During a pandemic, may I take my employees' temperatures to determine whether they have a fever?

A: Generally, measuring an employee's body temperature is a medical examination. If COVID-19 is deemed to be a pandemic, or if COVID-19 becomes widespread in the community as assessed by state or local health authorities or the CDC, then employers may measure employees' body temperature. However, employers should be aware that some people with COVID-19 will not have a fever. Other persons may try to hide fevers by taking common fever-reducing medications before being tested. Additionally, employers should try to make the temperature checks as least invasive as reasonably possible.

Q: When an employee returns from travel during a pandemic, do I have to wait until the employee develops COVID-19 symptoms before I can ask the employee if he or she traveled to a COVID-19 affected region or otherwise about his or her exposure to COVID-19 during the trip?

A: No. These would not be disability-related inquiries. If the CDC or state or local public health officials recommend that people who visit specified locations remain at home for a period of time (currently 14 days) until it is clear they do not have COVID-19 symptoms, an employer may ask whether employees are returning from these locations, even if the travel was personal.

Q: During a pandemic, may I ask employees who do not have COVID-19 symptoms to disclose whether they have a medical condition that the CDC says could make them especially vulnerable to COVID-19 complications?

A: Probably. If COVID-19 turns out to be mild like seasonal influenza or the H1N1 virus in the spring/summer of 2009, making disability-related inquiries or requiring medical examinations of employees without symptoms is prohibited by the ADA. However, employers should allow employees who experience flu-like symptoms to stay at home, which will benefit all employees including those who may be at increased risk of developing complications. If an employee voluntarily discloses (without a disability-related inquiry) that he or she has a specific medical condition or disability that puts him or her at increased risk of COVID-19 complications, you must keep the information confidential, but may ask the employee to describe the type of assistance he or she thinks will be needed (e.g. telework or leave for a medical appointment). You should not assume that all disabilities increase the risk of COVID-19 complications. If, as it appears likely, a COVID-19 pandemic becomes more severe or serious according to the assessment of local, state or federal public health officials, employers may have sufficient objective information from public health advisories to reasonably conclude that employees will face or constitute a direct threat if they contract COVID-19. Only in this circumstance may employers make disability-related inquiries or require medical examinations of asymptomatic employees to identify those at higher risk of COVID-19 complications.

Q: Can I encourage employees to work remotely as an infection-control strategy during a pandemic?

A: Yes. Remote working is an effective infection-control strategy that is often granted as a reasonable accommodation. And employees with disabilities that put them at high risk for complications of COVID-19 may request remote working privileges as a reasonable accommodation to reduce their chances of infection during a pandemic. If your employees work under a CBA, be sure to consider its limitations on your ability to require remote work.

Q: Okay, can I require my employees to wash their hands three times per day for at least 20 seconds each time?

A: Yes. Requiring infection control practices, such as regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal, does not implicate the ADA.

Q: During a pandemic, can I require employees to wear personal protective equipment (e.g., face masks, gloves, or gowns) designed to reduce the transmission of pandemic infection?

A: Yes. An employer may require employees to wear personal protective equipment during a pandemic. However, if an employee with a disability needs a related reasonable accommodation under the ADA (e.g., non-latex gloves, or gowns designed for individuals who use wheelchairs), the employer should provide these, absent undue hardship.

Q: What instructions should I give to an employee who is symptomatic at work?

A: Employees who are in medical distress or who have severe symptoms should seek emergency medical care. If symptoms are not severe, tell them "go home and contact your health care provider or the local health department for further instructions." Employees who suspect they may have been exposed to the virus and feel sick with fever, cough, or difficulty breathing should get medical care. They should call the office of their health care provider before going and tell the health care provider about the employees' travel or other exposure and symptoms. The health care provider will give instructions on how to get care without exposing other people to potential illness. While sick, employees should avoid contact with people, not go out, and delay travel to reduce the possibility of spreading illness to others. More information from the CDC available here.

Q: What instructions should I give to an employee who is symptomatic at home?

A: If employees are in severe distress, they should seek emergency medical care. If their symptoms are mild, they should contact their health care provider or the local health department for further instructions.

Q: Hurrah – scientists have developed an effective COVID-19 vaccine! Can I require all of my employees to take the vaccine regardless of their medical conditions or their religious beliefs during a pandemic?

A: No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him or her from taking the vaccine. Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee's sincerely held religious belief, practice, or observance prevents him or her from taking the vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII ("more than de minimis cost" to the operation of the employer's business, which is a lower standard than under the ADA). Generally, employers should encourage employees to get the vaccine rather than requiring them to take it.

Q: During a pandemic, do I have to continue to provide reasonable accommodations for employees with known disabilities that are unrelated to the pandemic, barring undue hardship?

A: Yes. An employer's ADA responsibilities to individuals with disabilities continue during a pandemic. Only when an employer can demonstrate that a person with a disability poses a direct threat, even after reasonable accommodation, can it lawfully exclude him or her from employment or employment-related activities.

If an employee with a disability needs the same reasonable accommodation at a remote worksite that the employee had at the workplace, the employer should provide that accommodation, absent undue hardship. In the event of undue hardship, the employer and employee should cooperate to identify an alternative reasonable accommodation.

Example C: A call center employee with low vision has a screen-reader on her work computer as a reasonable accommodation. In preparation for remote working during a pandemic, the employer issues notebook computers to all call center employees. In accordance with the ADA, the employer provides the employee with a notebook computer that has a screen-reader installed.

Q: During a pandemic, can I ask an employee why he or she has been absent from work if I suspect it was for a medical reason?

A: Yes. Asking why an individual did not report to work is not a disability-related inquiry. An employer is always entitled to know why an employee has not reported for work. Consult the CBA if one applies.

Example D: During an influenza pandemic, an employer directs a supervisor to contact an employee who has not reported to work for five business days without explanation. The supervisor asks this employee why he is absent and when he will return to work. The supervisor's inquiry is not a disability-related inquiry under the ADA.

Q: During a pandemic, can I ask an employee's health care provider to tell me if the employee tested positive for the COVID-19 virus, even if the employee refuses to give permission?

A: Yes. While HIPAA normally would prohibit a health care provider from sharing a patient's protected health information with a third party employer, HIPAA contains an exception for disclosures necessary to prevent a serious and imminent threat. Health care providers may share patient information with anyone as necessary to prevent or lessen a serious and imminent threat to the health and safety of a person or the public – consistent with applicable law (such as state statutes, regulations, or case law) and the provider's standards of ethical conduct. See 45 CFR 164.512(j). The Office for Civil Rights, U.S. Department of Health and Human Services, has confirmed that providers may disclose a patient's health information to anyone who is in a position to prevent or lesson the serious and imminent threat, including family, friends, caregivers, and law enforcement without a patient's permission. HIPAA expressly defers to the professional judgment of health professionals in making determinations about the nature and severity of the threat to health and safety. See 45 CFR 164.512(j).s.

The pandemic has ended: now what?

Q: Can I require employees who have been self-quarantined during a pandemic to provide a doctor's note certifying their fitness to return to work?

A: Yes. Such inquiries are permitted under the ADA either because they would not be disability-related or, if the COVID-19 pandemic is truly severe, they would be justified under the ADA standards for disability-related inquiries of employees. Always consider CBA obligations if they apply.

As a practical matter, however, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus.

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