Is COVID-19 considered a disability?

The EEOC states that “it is not yet clear” whether COVID-19 is or could be a disability. However, we urge caution and use of the interactive process as some COVID-19-related accommodation requests may be the result of underlying medical conditions which could be considered disabilities under the ADA.

The EEOC states that individuals with underlying medical conditions rendering them high-risk may be entitled to reasonable accommodations under the ADA to prevent “direct threat to self.”  Such an employee should request accommodation and the employer has a duty to engage in an interactive process with the employee to determine reasonable accommodations.  The employer can request supporting medical documentation specifying that the employee has a disability that puts him/her at higher risk for severe complications from COVID-19 (remember that in CA, employers may not require specific identification/diagnosis of the underlying medical condition) and that, as such, an accommodation is needed. 

Now, what about the employee who you know has a high-risk medical condition but doesn’t ask for an accommodation to reduce risk of exposure? Do you force the employee to stay home or accept other accommodations for their own good? Be careful. First, without a request for such an accommodation, you have no obligation to provide it. Second, that path requires an in-depth analysis to show that by working without appropriate accommodations, the employee poses a direct threat—a “significant risk of substantial harm”—to their own health.  

Finally, the EEOC states that an employer is not required to provide reasonable accommodation to an employee who is living with someone who has a disability that makes the individual high risk for serious COVID-19 illness.  The ADA only requires reasonable accommodation of an employee’s own disability, not those of a family member.

Will missed time due to COVID-19 be covered under FMLA?

Illness due to COVID-19 will most likely be covered under FMLA due to incapacity of 3 or more days and treatment by a healthcare provider. Let the medical certification process guide your decision. If an employee with a chronic health condition is ordered to stay home by their healthcare provider to prevent exposure to COVID-19, this will likely meet the definition of a serious health condition under FMLA. Additionally, be sure to check for state specific mandates, Oregon, for example permanently added child school or childcare provider closed due to a public health emergency as a protected leave reason under sick child leave.

What if we send someone home for exhibiting COVID-19 symptoms and they end up negative for the virus?

Initiate the typical exercise of providing FMLA notices, certification, etc. It is up to the employee to return the necessary paperwork, and as an employer, you can follow your standard practices for FMLA administration. However, be mindful of the current environment and give the employee additional time to return the required medical documentation.

Can employers ask employees about their symptoms?

Yes, the EEOC has advised questions about symptoms associated with COVID-19 can be asked. Those symptoms include cough, sore throat, fever, chills, and shortness of breath. Additional symptoms may include new loss of smell or taste as well as gastrointestinal problems, such as nausea, diarrhea, and vomiting. Employers may not ask employees who are teleworking these questions. Answers to these questions must be kept confidential. 

Can we take an employee’s temperature?

Taking an employee’s temperature is likely considered a “medical examination.” The EEOC has formally revised its guidance to clarify that employers may now take temperature checks of employees: “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 a recorded webinar provided by the EEOC, an employee can be denied entry into the workplace if an employee refuses to answer screening questions and/or submit to temperature screening. 

If an employee registers a temperature of 100.4 degrees or greater, they can be sent home. An elevated temperature, however, does not mean that an employee has COVID-19. Likewise, the absence of an elevated temperature does not mean someone is free of the virus. Keep in mind that individuals can have a contagion and not have a fever. You should also consider the potential outcomes: Will you pay an employee who has a temperature to stay at home? You should consult counsel if considering this approach.

Employers who will conduct screening or testing generally should apply the same requirements to all employees entering the workplace, rather than singling out individual employees for screening. An exception may be if a specific employee is exhibiting symptoms, in which case an employer may inquire if the employee may have COVID-19 and/or if the employee has been tested. 

All medical information obtained from an employee and documented must be maintained in a confidential medical file for the employee. 

Can we ask an employee about their family member’s health?

No, this violates GINA. GINA prohibits from asking about family member health. Ensure your managers avoid this questioning as well.

Employers may ask employees who will be physically entering the workplace whether they have been exposed to anyone with COVID-19 or its symptoms.  Employers should not limit the question to whether the employee has been exposed to any “family members” with COVID-19 or COVID-19 symptoms because GINA generally restricts inquiries into the medical conditions of an employee’s family. 

Can we require a sick employee to stay at home?

Yes. The CDC is encouraging employers to have sick employees stay home and not come back until they are symptom free for at least 24 hours. The EEOC gives similar guidance. Be sure this policy complies with laws prohibiting discrimination in the workplace.

Can we require an employee to provide a doctor’s note or fitness-for-duty to return to work?

Yes, but the CDC has advised employers should not require a note for employees who are sick with acute respiratory illness to validate their illness or to return to work, as healthcare provider offices and medical facilities may be overwhelmed and not able to provide documentation in a timely way. If you have a policy that requires a return to work note, consider a temporary written revision stating doctor’s notes are not required due to CDC advisement.

What if a healthy employee doesn’t want to come to work out of fear of exposure?

FMLA protects eligible employees who are incapacitated by a serious health condition or who are needed to care for covered family members who are incapacitated by a serious health condition. Leave taken by an employee for the purpose of avoiding exposure would not be protected under FMLA. However, if an employee has an underlying condition (respiratory, autoimmune, mental health, etc.) the request to stay at home may be ADA or FMLA qualifying.

If we are requiring an employee to stay at home, do they need to be paid?

First, review your policy language. Second, be mindful of your jurisdiction and review applicable state law. Some states and/or municipalities prevent forced use of accrued sick leave. Some states have extended sick leave statutes to cover coronavirus.

If you are allowing/promoting work from home, consider a written statement leveraging future ADA work from home requests. Language should outline that the situation is extraordinary, the remote work is temporary, and that all essential job functions might not be able to be performed.

The EEOC states that employers may NOT exclude employees who are 65 and older from the workplace simply because they are in a higher risk group for serious complications from COVID-19.  The EEOC guidance states: “The Age Discrimination in Employment Act prohibits employment discrimination against workers aged 40 and over. If the reason for an action is older age, over age 40, the law would not permit employers to bar older workers from the workplace, to require them to telework, or to place them on involuntary leave.” 

If my employee is at home due to school closure, is that protected?

The federal government’s mandatory expanded protections to some employees needing to be home due to their minor child’s school or daycare closures expired on December 31, 2020. However, a number of states have enacted similar legislation. Check with your state legislation when determining whether your employees could be protected.

Resources

DOL Pandemic & Family and Medical Leave Act: Questions & Answers

CDC Interim Guidance for Businesses

EEOC Enforcement Guide on Medical Examinations & Inquiries

State-by-State Unemployment Guide