As the coronavirus disease 2019 (COVID-19) continues to spread, U.S. employers considering taking preventative measures to reduce transmission should bear in mind employment laws that may restrict certain precautions, including the Americans with Disabilities Act (“ADA”).
Basic precautionary measures like promoting washing hands, encouraging employees to stay home when they are sick, and other good hygiene practices recommended by the Centers for Disease Control and Prevention (“CDC”) are unlikely to raise concerns under the ADA. Indeed, recent guidance from the Equal Employment Opportunity Commission (“EEOC”) makes clear that the CDC’s guidelines and suggestions for employers regarding COVID-19 do not violate the ADA.
However, the ADA does prohibit covered employers from excluding individuals with disabilities from the workplace for health or safety reasons unless they pose a “direct threat” (i.e., a significant risk to the health or safety of others that can’t be eliminated by reasonable accommodation).
Nonetheless, it is likely permissible for employers to ask employees who travel to or from an area affected by COVID-19 to work from home or, if remote work is not possible, take leave for 14 days (the incubation period for COVID-19) because the employees pose a direct threat under the ADA. Whether the leave period must be paid or can be unpaid depends mostly on the employee’s classification under the federal Fair Labor Standards Act as “exempt” or “non-exempt,” the particular state laws of the state in which the employee works, and the employer’s own sick leave policies.
The advice from the EEOC with respect to pandemics, generally, is to follow public health guidance. The EEOC has advised that “[w]hether pandemic influenza rises to the level of a direct threat depends on the severity of the illness.” For example, the seasonal flu wouldn’t pose a direct threat or justify disability-related inquiries or medical examinations, but if the CDC or other health authorities determine that COVID-19 is significantly more severe, it could pose a direct threat. According to the EEOC, “[t]he assessment by the CDC or public health authorities would provide the objective evidence needed for a disability-related inquiry or medical examination.”
The EEOC’s guidance specifically states that if the CDC recommends people who visit certain locations stay at home for several days until it is clear they do not have pandemic influenza symptoms, an employer can ask whether employees are returning from those locations (even if travel was personal). The EEOC further states that an employer can encourage employees to telework. The CDC has reported that the potential public health threat posed by COVID-19 is high, both globally and to the U.S. As such, the CDC is advising that people not travel to China. People who do travel to China are subject to health monitoring and “[s]ome people may have their movement restricted or be asked to limit their contact with others until the 14-day period has ended.”
The EEOC in 2016 also issued specific guidance with respect to the Zika virus, which notes that “because the symptoms of Zika are often mild and the virus cannot be transmitted through casual contact in the workplace, an employer will probably not be able to justify excluding an employee with the virus from the workplace or limiting his or her job duties.” However, unlike the Zika virus, the symptoms of COVID-19 can be severe and result in death (the CDC reported that as of February 23, 2020, there were 78,811 reported cases of the illness and 2,462 associated deaths worldwide), and it can be transmitted by casual contact, which makes the COVID-19 situation distinguishable. As such, if an employer asks employees returning from COVID-19 affected areas to remain home for a quarantine period, it is important that they document the unique circumstances underlying the stay-at-home request.
As always when dealing with matters of safety and health, employers responding to COVID-19 must balance the risk of potential liability under employment laws against the risk of harm to the safety and health of their employees.
Even if an employer does not implement new policies or other preventative measures in response to COVID-19, employers should still be sure to engage in open communications with their employees about the virus generally, including:
- Ways in which employees can protect themselves from exposure to COVID-19 (or referring employees to the CDC for more information on preventing exposure);
- Reinforcing the employer’s current sick leave and/or remote working policies; and
- Encouraging employees with questions or concerns, especially with respect to upcoming business travel, to reach out to the employer’s human resources department.