Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
The increased spread of the novel coronavirus (COVID-19) in the United States presents employers with significant workplace challenges. The following Frequently Asked Questions (FAQs) are designed to address some of the common questions employers are facing as more and more people across the country are affected by COVID-19. Employers are also encouraged to consult relevant FAQs and guidance put forth by the Centers for Disease Control (CDC), Equal Employment Opportunity Commission (EEOC), and the Department of Labor (DOL), among other government agencies.
Because the COVID-19 situation is dynamic, with new government measures occurring each day, employers should consult with counsel for the latest developments and updated guidance on these topics.
1. Can employers take the temperature of employees who are coming to work?
Temperature checks normally constitute an overly broad medical exam under the Americans with Disabilities Act (ADA) (because the exam is not “job-related and consistent with business necessity”) as well as various state non-discrimination laws, which carry separate penalties. However, as of March 19, 2020, the EEOC issued updated guidance specifically concerning COVID-19, the ADA and the Rehabilitation Act. With regard to temperature checks, the EEOC indicates: “If pandemic influenza symptoms become more severe than the seasonal flu or the H1N1 virus in the spring/summer of 2009, or if pandemic influenza becomes widespread in the community as assessed by state or local health authorities or the CDC, then employers may measure employees’ body temperature.”
Temperature screening should not be an employer’s only response to the COVID-19 outbreak; the EEOC guidance notes, “some people with influenza, including the 2009 H1N1 virus or COVID-19, do not have a fever.” Rather, a temperature check is only one element of a comprehensive program, including employee education about COVID-19 symptoms, employee and visitor screening questionnaires or interviews related to other risk factors, limitations on non-essential travel, encouragement to work from home, emphasis on good hygiene (e.g., handwashing), social distancing, and assessment of paid and unpaid leave programs. Failing to take other prudent measures to limit COVID-19 exposure may undermine an employer’s good-faith basis for adopting a temperature screen.
In implementing a temperature screening program, it is necessary to 1) establish a consistent process for conducting such checks; 2) mitigate the risk that someone excluded by a temperature check will bring a claim; and 3) assess any other considerations that should weigh into the decision, such as public health.
The following are prudent measures that an employer may want to consider to help mitigate risk: implementing a safe and consistent procedure designed to reduce the risk of coronavirus exposure (i.e., with respect to the individual administering the screening, as well as among those being screened); ensuring that the screen applies to all those entering the workplace, not just employees; giving employees and others prior notice about the screen and encouraging them to self-monitor for symptoms and stay away from the workplace if they are experiencing symptoms; keeping any documented results confidential in a file separate from the employee’s personnel file; and sharing the screening results on a purely need-to-know basis as necessary to protect against the threat of exposure to coronavirus.
Additional risk mitigation measures could include paying non-exempt employees for the time spent waiting and being screened, which is compensable in many states, as well as making paid or unpaid leave available for employees who are sent home and are unable to work remotely. In California, the law requires that the company provide not only prior notice to individuals before scanning their temperatures but also that the notice meets the requirements of a Notice of Collection under the California Consumer Protection Act. Specifically, the Notice must explain that the company will collect the employees’ body temperature and describe each purpose for which the company will use that information. Multinational employers should seek advice with regard to locally applicable privacy laws, including the General Data Protection Regulation (GDPR).
While employers might normally be inclined to direct an employee who does not pass the temperature screen to seek testing, employers should be mindful of the strains that the COVID-19 outbreak is placing on the healthcare system at this time, and the likelihood that an employee may not be able to get tested promptly.
2. Does contracting COVID-19 constitute having a disability under the Americans with Disabilities Act (ADA)?
For exposed employees who experience no symptoms, or only mild, temporary symptoms, COVID-19 standing alone likely would not qualify as a “disability” under the ADA, as temporary, non-chronic impairments with little or no long-term impact, such as broken limbs, sprained joints, concussions, appendicitis, pneumonia, and influenza usually are not viewed as disabilities. However, an employee who contracts COVID-19 may be entitled to reasonable accommodation and protection under the ADA if the employee’s reaction to COVID-19 is severe or if it complicates or exacerbates one or more of an employee’s other health condition(s)/disabilities. The ADA requires employers to assess whether a particular employee is “disabled” under the ADA on an individualized basis, taking into account the employee’s particular reaction to the illness, their symptoms and any other relevant considerations. In addition, COVID-19 may qualify as a disability under applicable state disability laws with definitions of “disability” that are less stringent than the ADA’s definition.
3. When should we require a fitness-for-duty test and/or return-to-work clearance?
The ADA generally prohibits medical examinations and inquiries of current employees unless such examinations or inquiries are job-related and consistent with business necessity. An examination or inquiry is job-related and consistent with business necessity if the employer has reason to believe that the employee may have a medical impairment that restricts the employee’s ability to perform essential job functions and/or may pose a “direct threat” of harm to the employee or others in the workplace. A “direct threat” is defined as a significant risk of substantial harm to the health or safety of the employee or others that cannot be eliminated or sufficiently reduced by reasonable accommodation.
An employee likely would not be deemed to pose a “direct threat” due to COVID-19 unless the employee is known to have contracted the virus, has come into close contact with someone known or likely to have the virus, or is exhibiting symptoms that may be associated with the virus. Employers may request a fitness-for-duty or return-to-work certification if an employee has been quarantined by a treating medical provider or public health official or the employer has placed the employee off work based upon reasonable, objective evidence that the employee may pose a direct threat of harm in the workplace. However, the certification should be narrowly tailored to seek information that is job-related and consistent with business necessity. Therefore, where the basis for seeking the medical information is rooted only in a belief that the employee may pose a “direct threat” of harm to others by spreading the virus but there is no indication that the employee has medical restrictions on performing essential job functions, the fitness-for-duty certification should be focused on whether or not the employee poses a direct threat in the workplace.
Please note that the CDC’s guidance discourages requiring a healthcare provider’s note for employees who are sick with acute respiratory illness to validate their illness or to return to work, in order to reduce the burden on busy healthcare providers. Further, certain state and local agencies have issued either limitations on seeking some type of healthcare provider’s note or certification or guidance similar to the CDC’s guidance, due to the burdens created on healthcare providers during this time.
4. How should employers disinfect the workplace if they have reason to be believe (or actual knowledge) that an employee has COVID-19?
Based on OSHA’s guidance, it is our recommendation that so long as employers are routinely cleaning high-touch areas, there is no need to perform special cleaning upon learning that an asymptomatic employee has tested positive for COVID-19. Employers should only undertake the below cleaning if a symptomatic employee was present at the job site within 48 hours of testing positive.
The CDC has issued Environmental Cleaning and Disinfection Recommendations. It is important to note the following:
- These guidelines are focused on community, non-healthcare facilities (e.g., schools, institutions of higher education, offices, daycare centers, businesses, community centers) that do not house persons overnight and are not meant for cleaning staff in healthcare facilities, repatriation sites or households.
- The Personal Protective Equipment (PPE) required does NOT include respirators (which makes it so much easier for employers) but includes disposable gloves and gowns for all tasks, including handling trash.
- Gloves and gowns should be compatible with the disinfectant products being used.
- Additional PPE might be required based on the cleaning/disinfectant products being used and whether there is a risk of splash.
- Gloves and gowns should be removed carefully to avoid contamination of the wearer and the surrounding area. Be sure to clean hands after removing gloves.
- Gloves should be removed after cleaning a room or area occupied by ill persons and hands must be cleaned immediately after gloves are removed.
- Cleaning staff should immediately report breaches in PPE (e.g., tear in gloves) or any potential exposures to their supervisor.
- The guidelines state that employers should: (1) develop policies for worker protection; and (2) provide training to all cleaning staff on site prior to providing cleaning tasks. Training should include when to use PPE, what PPE is necessary, how to properly don (put on), use, and doff (take off) PPE, and how to properly dispose of PPE.
Regarding timing/scope of cleaning:
- It is recommended to close off areas used by ill person(s) and wait as long as practicable before cleaning and disinfecting to minimize potential for exposure to respiratory droplets.
- Open outside doors and windows to increase air circulation in the area. If possible, wait up to 24 hours before beginning cleaning and disinfection.
- Cleaning staff should clean and disinfect all areas (e.g., offices, bathrooms, and common areas) used by the ill person(s) focusing especially on frequently touched surfaces.
5. What if an employee requests to wear a mask as an accommodation?
The CDC does not recommend that people who are well wear a face mask to protect themselves from respiratory disease, including COVID-19. The CDC does recommend that face masks should be used by people who show symptoms of COVID-19. However, if an employee shows symptoms or has been diagnosed with COVID-19, the CDC recommends that the employee be separated from other employees and be sent home immediately, thus negating the need for a mask.
If an employee asks to wear a face mask as an accommodation of another condition (such as an autoimmune condition that, the employee reports, may cause a “direct threat” of harm to the employee if they contract the virus), the ADA requires the employer to, at the very least, engage the employee in the interactive accommodation process to determine whether the employee’s request may be granted or not. The ADA also requires that, pending the conclusion of the interactive process, such an employee should not be required to remain in the workplace. If, through the interactive process, the employer determines that the employee does, indeed, have a disability and that wearing a face mask is the only accommodation that will sufficiently reduce or eliminate any threat to the employee or others, the ADA requires the employer to allow the employee to wear a face mask unless it would interfere with the employee’s ability to perform the essential job functions or it would pose an “undue hardship.”
6. If nonexempt worker is allowed to telecommute, what issues should the employer be aware of?
Employers should consider how to address situations where employees work from home due to quarantine, whether as a long-term or short-term solution. Non-exempt employees must be compensated for all time spent working, and so it is imperative to train employees to track all compensable time, and avoid “off the clock” work. Generally, federal and state law requires employers to pay non-exempt employees for performing any work remotely, even if the employee did not have express permission to work from home. Implementing, communicating and strictly enforcing a time and attendance policy that clearly explains what constitutes compensable time and requires employees to accurately record all time worked, and also tracks and records meal and rest periods where required, will help minimize the risk of wage and hour violations for employees working from home. Employers should require that non-exempt employees certify the accuracy of their recorded work time each week, and further certify that they did not perform any work “off the clock” during the timekeeping or pay period. Paying non-exempt employees for all recorded working time, regardless of whether such working time was approved in advance also helps minimize the risk of violations. As with on-site work, employers can require employees to request approval before working overtime. However, any such policy should make clear that compensable time will be paid, regardless of whether it was approved in advance.
7. If one of our employees is quarantined, what information can we share with our employees?
If an employee is confirmed to have COVID-19, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace. Employers should not, however, disclose to co-workers the identity of the quarantined employee because confidentiality requirements under federal law, such as the Americans with Disabilities Act (ADA), or state law, such as California’s Confidentiality of Medical Information Act (CMIA), may apply.