Encouraging employees to wash their hands is no longer enough!
As anticipated in our last alert, the World Health Organization (WHO) has now declared the COVID-19 virus a pandemic, changing the legal landscape for employers in terms of how they navigate the impact of the outbreak on their workforce. As such, we are circulating an updated FAQ with additional tips for US employers. As previously explained, these FAQs are based on experience with prior pandemics, and the ADA and EEOC guidance, which are the main "drivers" for managing employees. Of course, bear in mind that there are many other considerations that can come into play, such as OSHA and state equivalent health & safety laws, FMLA and state equivalent leave laws, HIPPA and state privacy laws, state and federal wage and hour laws, and the NLRA, all of which will need to be "ticked through" depending on the facts.
Now that a pandemic has been declared: how can we protect our workplace and employees?
Q: Does the WHO's declaration of a "global pandemic" mean that that US employers may rely on the "direct threat" ADA exception to conduct employee medical exams (e.g., temperature checks) and make disability-related inquiries (e.g., asking employees if they have a weakened immune system that might make them more susceptible to severe illness if exposed to COVID-19)?
A: Probably. A pandemic declaration describes the scope of the disease's spread, but not the severity of the disease, so a pandemic declaration by itself is not enough. But given the CDC's current assessment of the severity of COVID-19, the WHO's pandemic declaration, and local public health agency proclamations about the disease, many U.S. employers should now be able to take steps to protect their workforces from COVID-19. The 2009 EEOC guidance outlines the relevant ADA standard:
Whether pandemic influenza rises to the level of a direct threat depends on the severity of the illness. If the CDC or state or local public health authorities determine that the illness is like seasonal influenza or the 2009 spring/summer H1N1 influenza, it would not pose a direct threat or justify disability-related inquiries and medical examinations. By contrast, if the CDC or state or local health authorities determine that pandemic influenza is significantly more severe, it could pose a direct threat. The assessment by the CDC or public health authorities would provide the objective evidence needed for a disability-related inquiry or medical examination. During a pandemic, employers should rely on the latest CDC and state or local public health assessments. While the EEOC recognizes that public health recommendations may change during a crisis and differ between states, employers are expected to make their best efforts to obtain public health advice that is contemporaneous and appropriate for their location, and to make reasonable assessments of conditions in their workplace based on this information.
It is now relatively clear that COVID-19 will be deemed severe in comparison to seasonal influenza or the 2009 H1N1 influenza. The CDC recently declared:
Outbreaks of novel virus infections among people are always of public health concern. The risk to the general public from these outbreaks depends on characteristics of the virus, including how well it spreads between people; the severity of resulting illness; and the medical or other measures available to control the impact of the virus (for example, vaccines or medications that can treat the illness). That this disease has caused severe illness, including illness resulting in death is concerning, especially since it has also shown sustained person-to-person spread in several places. These factors meet two of the criteria of a pandemic. As community spread is detected in more and more countries, the world moves closer toward meeting the third criteria, worldwide spread of the new virus. It is important to note that current circumstances suggest it is likely that this virus will cause a pandemic. This is a rapidly evolving situation and CDC's risk assessment will be updated as needed.
The CDC also notes that there is no current treatment for COVID-19, that the International Health Regulations Emergency Committee of the World Health Organization declared the outbreak a "public health emergency of international concern" and that, on January 31, 2020, Health and Human Services Secretary Alex M. Azar II declared a public health emergency (PHE) for the United States to aid the nation's healthcare community in responding to COVID-19. Many states have now declared local health emergencies, and cases of community spread are being commonly reported throughout the US With close to 1,200 confirmed cases in 41 different states and the District of Columbia, US employers likely have the "objective evidence" necessary to justify disability-related inquiries or medical examinations.
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. You can also send an employee home if the illness is serious enough to pose a direct threat (as defined under the ADA) to the employee or others (see above for an analysis of the current "direct threat" level). But if your workforce is unionized, make sure you consider any CBA-related obligations, such as guaranteed workweek provisions or shift change notice requirements. It is also important to not overreact; train your supervisors on the symptoms to watch for and when to send an employee home.
Q: Can I ask employees to seek medical treatment if they exhibit symptoms of COVID-19 or the flu?
A: You may ask employees to seek medical attention and to be tested for COVID-19, but you should not require it. Some employees may have sincerely-held religious beliefs that prohibit them from receiving medical treatment.
Q: Can I require employees who have exhibited symptoms of COVID-19 or otherwise been quarantined to provide a doctor's note certifying their fitness to return to work?
A: Yes. Fitness-for-duty certifications that address whether employees are able to return to work, and that do not ask about underlying diagnoses or medical conditions, are generally permitted under the ADA. Because the COVID-19 pandemic likely will be deemed severe in the United States, fitness for duty certifications also may be justified under the ADA standards for disability-related inquiries of employees. See above for an assessment of the current severity of COVID-19 in the United States. Always consider applicable CBA obligations. 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 asking symptomatic employees to work remotely/self-quarantine for 14 days or relying on local clinics to provide a form, a stamp, or an e-mail to certify that an individual is not infectious and may return to work.
Q: During a pandemic, how much information can I request from employees who report feeling ill at work or who call in sick?
A: First, you may ask employees if they are experiencing COVID-19-like symptoms, such as fever or chills and a cough or shortness of breath, because such inquiries are not disability-related. You must keep all information about employee illness confidential in compliance with the ADA and privacy laws. Second, if the COVID-19 pandemic is severe in the relevant community, the inquiries, even if disability-related, likely are justified by a reasonable belief based on objective evidence that the severe form of COVID-19 poses a direct threat to the workplace. Again, this will be a geographic-specific determination, based on local public health information and risk assessments. See above for an assessment of COVID-19's current severity in the United States.
Q: During a pandemic, may I take my employees' temperatures to determine whether they have a fever?
A: Measuring an employee's body temperature is considered a medical examination under the ADA. Since COVID-19 has been deemed to be a pandemic, and likely has reached severe status in the United States, employers may measure their US-based employees' body temperature if doing so is job-related and consistent with business necessity. For example, there may be no job-related or business need to check the temperature of an employee who works in isolation, but there likely is a compelling business need to test employees who interact closely with customers or co-workers. However, employers should be aware that body temperature measurements may not be conclusive. Some people with COVID-19 will not have a fever. Other persons may intentionally or unintentionally suppress fevers by taking fever-reducing medications. Employers who institute temperature checks should do so in the least invasive manner possible. And again, to the extent that any data is retained after checking temperatures, it should be handled as confidential medical information.
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. The CDC recommends that people who visit locations with high levels of virus transmission (i.e., Level 2 or 3 Travel Health Notice countries) remain in self-quarantine after returning home for 14 days until it is clear they do not have COVID-19 symptoms. Employers may (and should) ask whether employees are returning from such 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 (as appears likely) COVID-19 is deemed to be significantly more severe than seasonal influenza or the 2009 H1N1 virus, disability-related inquiries or medical examinations will be permissible under the ADA, even for asymptomatic employees. See above regarding the current assessment of COVID-19's severity. 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.
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 A: 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 B: 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, US 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.
Q: As we prepare to see extended absences caused by the pandemic, are there additional policies or procedures should we consider putting in place to protect the workplace and assist employees / contractors?
A: Yes. Employers may need to institute or adjust their remote working policies as greater numbers of employees are asked to work from home. Employers should also consider wage and hour obligations and policies, including having non-exempt employees who work remotely follow procedures designed to ensure compliance with wage laws and meal period / rest break requirements. In addition to managing employee workforces, most employers have non-employee visitors coming on site throughout the day for various reasons. Given the obligation under OSHA and others to provide a healthy and safe workplace, employers should consider adopting policies around visitors. Restricting non-essential / social visitors is a viable approach. Questionnaires and signage that asks / alerts visitors that access may be denied if they have travelled to a Level 2 Travel Health Notice or greater area, have had close contact with, cared for or live in the same household as someone diagnosed with COVID-19, have pending test results or have been diagnosed with COVID-19 or are experiencing symptoms are other options. To the extent that any information is gathered, it should be kept confidential.
In addition, as mentioned in prior alerts, flexible sick policies are recommended. Some companies are adopting Supplemental Sick Leave Policies, which provide additional paid sick time off to employees who either are diagnosed with COVID-19, to care for a family member who is diagnosed with COVID-19 or to care for family members / children who may be home as a result of school closures and the like. In drafting such policies, US employers should consider eligibility requirements, interactions with other entitlements and maintaining employer discretion, among others.
Further, companies with contingent workforces are considering Supplemental Sick "Funds" for Contractors that are intended to provide some relief to those workers who otherwise would not have access to sick leave given their status. Putting aside the immediate question of how this may impact potential misclassification issues, which in a pandemic cannot be the main concern but will likely arise at a later point, US companies should consider eligibility requirements, potential tax implications of creating a fund and maintaining discretion. Consult with counsel to develop policies to deal with extended absences and the impact on your workers and the continuity of business.