Ignorance is No Bliss

What Employers Can Ask in a Pandemic

Through the confusion raging around the state-to-state spread of coronavirus disease 2019 (COVID-19) comes at least one federal agency seemingly prepared to effectively guide employers and employees alike to detect, correct, and ultimately protect.

Out of the 2009 “H1N1” pandemic, the Equal Employment Opportunity Commission (EEOC) issued “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act” (Guide), now updated along with a summary “What You Should Know About the ADA, the Rehabilitation Act, and COVID-19” (COVID Circular) publications to address their application to COVID-19.

The Guide explains a “pandemic” as a global “epidemic,” identifying five influenza pandemics over the last 100 years: ● the deadly “Spanish Flu” of 1918; the milder ● “Asian” and ● “Hong Kong” flus of the 1950s and 1960s; ● the 2003 SARS outbreak; ● the 2009 H1N1 flu; and ● COVID-19, declared a pandemic on March 11, 2020.

The EEOC is responsible for enforcement of the 1991 Americans with Disabilities Act (ADA), protecting disabled workers from discrimination. In normal times, the ADA’s guidelines overwhelmingly seek to protect employee privacy by barring managers from directly asking about possible illness, ailments, diagnoses, sending employees home for certain symptoms, or taking their temperatures. These of course are no longer normal times. Finding COVID-19 to constitute a “direct threat” (“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’), the Guide and Covid Circular have rewritten the rules to place employer and co-worker need to know to the fore.

Thus, managers may now make disease-related inquiries and impositions the ADA guidelines would otherwise condemn in any milder context. The Guide now confirms employers may ask questions and require compliance deeply invasive of individual worker privacy. For example, in these pandemic “direct threat” conditions the EEOC now permits an employer to:

• Send an employee home who displays influenza-like symptoms (for example, fever, chills, cough, shortness of breath, or sore throat). That the worker may be afflicted with no more than the common cold or not contagious is irrelevant;
• Ask an employee who is feeling ill or calling in sick if he or she is experiencing influenza-like symptoms, provided management maintains all such acquired illness information as a confidential medical record. In normal times, employers would be limited to asking about an evidently ill employee’s ability to fulfill his/her job duties, not about the particular afflictions or symptoms that person was experiencing;
• Measure worker body temperature, again as long as management maintains the information obtained as a confidential record. This action is normally barred as it’s considered a medical examination;
• COVID-19 questions to employees returning from travel: Under the current emergency, an employer need not wait until that person has developed symptoms to ask questions about exposure to COVID-19 influenza during the trip; and
• Questions to employees on susceptibility to influenza: As perhaps the greatest intrusion clearly prohibited during non-pandemic times, if a public health official assesses pandemic conditions to be “severe” (as the officials at every level have already done with COVID-19), then an employer may have justifiable grounds to ask a worker for any health condition that makes him or her more susceptible to influenza and to even require medical examinations of asymptomatic employees to identify those at higher risk of complications.

California’s Department of Fair Employment and Housing (DFEH) issued similar but in some instances more restrictive standards on March 20, 2020. For example, the DFEH’s guidance does not address employer ability to ask an asymptomatic employee if she/he has any at-risk condition or to require any such asymptomatic employee to submit to a COVID-19-related medical examination.

With federal, state and local responses to the current crisis rapidly evolving, it is a good idea to consult with experienced legal counsel for assistance on COVID-19 related personnel decisions.

Best employer practices can and should also include policies and procedures that place workers on notice of the above management prerogatives under pandemic conditions. All concerned are then informed of the otherwise unusual rules and lessened privacy protections demanded by a public health threat that discriminates in favor of no-one.

See also:

• Telecommuting in Response to Coronavirus Outbreak (March 2020);
• Holding Firm (March 2020)
• Federal Coronavirus Workplace Relief (March 2020)

For more information about these laws or other employment issues related to coronavirus, contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Tim Bowles

March 25, 2020