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Written by Sarah R. Marmor
The COVID-19 pandemic has shifted the landscape for U.S. employers in myriad ways in the last month, and some of the rules applying to disability law, workplace safety, and employee health considerations have followed suit – although not as much as some may think. The EEOC already had in place guidelines addressing influenza pandemics, and those have been updated based on specific elements of this latest crisis, and this is a good resource for employers and employees alike. https://www.eeoc.gov/facts/pandemic_flu.html
This bulletin reminds employers about the law relevant to employer inquiries concerning the health of their employees and provides some relatively simple “rules of the road” in navigating legal obligations to healthy and stricken employees. Some of this may seem like common sense, but there are traps for the unwary (or the panicked), and as always we recommend consulting with company HR and legal counsel when setting policies or addressing particular cases.
The ADA Bars Disability-Related Inquiries and Medical Examinations (With Key Exceptions)
The Americans with Disabilities Act was created to protect the ability of people with disabilities or perceived disabilities from discrimination in the workplace. To that end, the Act prohibits making disability-related inquiries or requiring medical examinations unless “such examination or inquiry is shown to be job-related and consistent with business necessity.” 42 U.S.C § 12112(D)(4).
Neither COVID-19 nor the flu currently has been established as a disability within the meaning of the ADA. Both are considered transitory, but the EEOC has declined to state definitively whether COVID-19 is a disability under the law. In any event, employees may have underlying conditions that would qualify as disabilities (e.g. lung disease, heart conditions) and the law in most circuits is clear that an employee need not have an actual disability to be covered by the prohibition against inquiries that could reveal a disability or medical examinations that are not job-related or consistent with business necessity. And to fit within those exceptions to the rule, an employer must have some objective evidence that the employee may not be able to perform the essential functions of a job before being able to ask about their physical or mental condition – or to subject an employee to a medical exam in order to start or return to work.
Rules of the Pandemic Road
Employers cannot assume that the current pandemic has changed this fundamental rule. That said, the EEOC has made it clear it will follow the recommendations of the CDC during the present crisis and has clarified that employers can and should play a role in ensuring employees are safe to work on their premises. While many employees are working remotely at this time, some states may well ease restrictions in the coming months despite the expectation that the virus will linger for months and even years until a hoped-for vaccine is created. Therefore, employers would do well to note what they can and should not do.
To keep this as simple as possible, here is a list of the rules of the road. As always in law, there are nuances and potential pitfalls – and the rules could change based on legal challenges or medical advice from the CDC.
A Word About OSHA
Many non-industrial employers may not have considered whether OSHA applies to COVID-19 matters in the workplace. Here, too, the landscape is evolving. OSHA requires employers to record work-related injuries, and there has been significant debate as to whether an employee with COVID-19 is a “recordable illness.” So far, OSHA’s position has been that it can be if the infection is the result of performing work-related duties. The question whether an employee was infected at work or elsewhere is tricky, and likely to be the subject of significant debate in the coming months. As to actually reporting COVID-19 cases to OSHA, the agency currently takes the position that only cases where an employee contracted the illness from work and passed away should be reported. Again, this is likely to be the subject of significant debate as the source of infection may not easily be identified. Finally, so far, OSHA has not issued new sanitation or other guidelines about how to protect employees from infection on the job. This means for most office-based employers, so long as the buildings in which the offices are owned or rented engage in reasonable regular cleaning and sanitation, there should not be a basis for OSHA concerns, at least for now.