Ask Leslie: How Do I Comply With The ADA During This Coronavirus Pandemic?

By Leslie Zieren, The McCalmon Group, Inc.

Dear Leslie:

 

On top of health concerns for my employees, their families, and myself, I have so many ADA-related questions. Where do I start?


Signed: Overwhelmed

Dear Overwhelmed:

First, this pandemic presents unprecedented challenges for employers and employees. Health professional and government recommendations and requirements are changing daily. You are not alone in feeling uncertain.

Second, the Americans with Disabilities Act (ADA) applies to employers with 15 or more employees. Your state may have a version that applies to even smaller employers.

Third, the EEOC has a Guidance document – "Pandemic Preparedness In the Workplace and the Americans with Disabilities Act". See https://www.eeoc.gov/facts/pandemic_flu.html#5.

This is not new guidance. It was drafted during the 2009 H1N1 outbreak, so it references the flu, not the novel coronavirus, but it is still instructive as to the novel coronavirus and the EEOC has made reference to it in recent days.

In general, having the flu is not considered an impairment or disability under the ADA, and likewise, having the coronavirus will not either. However, disabilities or impairment may later develop in survivors. We will address that later.

 

For now, employers like you want to have a healthy workplace but aren't sure how to avoid making disability-related health inquires, which would create ADA risk.

Here are some tips:

  • Employers may measure body temperatures of employees. Inform employees that this is not to determine an impairment or a medical condition, but to determine symptoms. This is not foolproof. Some people exposed to COVID-19 have no fever.
  • Employers may ask an employee who becomes ill at work or who calls in sick if they are experiencing coronavirus symptoms such as fever, cough, and difficulty breathing.
  • Employers may send employees home who display these symptoms. First, this is not considered a "disability-related". Second, even it if was, it is permitted under the ADA if the illness is considered to pose a "direct threat" to the employee or to others in the workplace. A direct threat is "a significant risk of substantial harm to the health or safety of the individual or others."
  • Employers may require infection control practices in the workplace and can require, if possible, telework.
  • Employers can ask an employee why they have been absent, even if they suspect a medical reason. This is not considered a "disability-related" question. It's a question designed to find out why an employee was absent.
  • Employers may require a physician's note for an absence or to return to work; however, the CDC recommends against this because of the burden on the health system.
  • Employers may require employees returning from travel, whether professional or personal, to remain at home for 14 days until it is clear they do not have COVID-19 symptoms.

Jack McCalmon and Leslie Zieren are attorneys with more than 50 years combined experience assisting employers in lowering their risk, including answering questions, like the one above, through the McCalmon Group's Best Practices Help Line. The Best Practice Help Line is a service of The McCalmon Group, Inc. Your organization may have access to The Best Practice Help Line or a similar service from another provider at no cost to you or at a discount. For questions about The Best Practice Help Line or what similar services are available to you via this Platform, call 888.712.7667.

If you have a question that you would like Jack McCalmon or Leslie Zieren to consider for this column, please submit it to ask@mccalmon.com. Please note that The McCalmon Group cannot guarantee that your question will be answered. Answers are based on generally accepted risk management best practices. They are not, and should not be considered, legal advice. If you need an answer immediately or desire legal advice, please call your local legal counsel.

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