The COVID-19 Virus (“Coronavirus”) is presenting challenges for businesses in a multitude of areas. One particularly concerning prospect is an employee being exposed to the virus and in turn contaminating the rest of the business. While employers may want to ask their employees questions about their health to evaluate the risk of exposure, employers need to be aware of the various laws surrounding this sensitive topic.
OSHA Guidance on COVID-19
The U.S. Department of Labor Occupational Safety and Health Administration (OSHA) recently issued “Guidance on Preparing Workplaces for COVID-19.”[1] In its guide, OSHA encourages employers to develop an infectious disease response plan including policies to identify potentially sick employees. However, as many employers are likely aware, the American Disabilities Act (ADA) prohibits employers from inquiring into an employee’s medical conditions. Therefore, asking questions to determine possible Coronavirus exposure also comes with the risk of violating federal regulations.
[1] https://www.osha.gov/Publications/OSHA3990.pdf
U.S. Equal Employment Opportunity Commission Coronavirus Alert
Given these federal regulations, the U.S. Equal Employment Opportunity Commission (EEOC) released specific guidance for employers to navigate the ADA regulations as well as the coronavirus pandemic.[2] While the guide was initially used for the influenza pandemic, the EEOC is applying the same procedures to the coronavirus pandemic. The EEOC give employers ADA-compliant ways to determine potential absenteeism. For example, the EEOC includes a survey with four questions and asks employees to check yes or no if any of the questions apply to him or her, without specifying which question applies. This survey allows employers to determine how many employees may be affected, without knowing specifics on each employee’s medical condition.
[2] https://www.eeoc.gov/facts/pandemic_flu.html
Additionally, the EEOC permits employers to ask medically specific questions, that would otherwise be prohibited under the ADA, if the employee poses a “direct threat.” The decision to label an employee a “direct threat” must be objective and should be evaluated by looking at four factors: “(1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that potential harm will occur; and (4) the imminence of the potential harm.” Therefore, given the severity of the coronavirus and the potential harm that can occur, employers may be permitted, under certain circumstances, to ask specific and appropriate medical questions. However, prior to asking these questions, employers should check with an attorney to ensure they are objective in their classification of who is a direct threat.
Center for Disease Control Recommendations for Employers
The Center for Disease Control (CDC) has outlined additional steps employers can take to maintain a safe work environment. Some strategies include encouraging sick employees to stay home, performing routine cleaning, and advising employees on health and safety practices such a proper hand washing. The CDC has also encouraged employers to have plans in place in the event of a decrease in workforce such as cross-training employees and implementing plans to maintain essential business operations.
This virus has caused a series of unprecedented events across the country. It is crucial that businesses have plans in place and understand the various legal implications that can occur.
