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Fit for Duty: ADA, FMLA and Discrimination Disputes in a COVID-19 World

Management-side labor and employment law attorney Jon Hyman this week took part in the webcast, “Inoculating Your HR Policy,” moderated by Workspan columnist Charles Epstein, president of Backbone Inc., and the co-host and producer of the WorldatWork podcast, “Work in Progress.”

The following Q&A is between Epstein and Hyman.

Charles Epstein 

What are the disability discrimination implications of inquiring of and testing employees regarding potential COVID-19 exposure?

I think what we’re seeing in and out of the workplace are a lot of fear-induced reactions. I read a story [just before jumping on today’s webinar] about a flight that got diverted from Newark to Denver, that somebody sneezed on the plane and somebody freaked out. Had a complete panic attack on the airplane that actually caused the flight to be diverted because the person became uncontrollably reactionary to one of the people on the airplane sneezing.

Jon Hyman

We want to guard against that type of reaction in the workplace and an employer can legally do certain things — some of them basic — within the framework of the Americans Disabilities Act and all the parallel state anti-disability discrimination.

For example, if an employee doesn’t feel well, encourage them to stay home, or frankly even require them to stay home. Somebody has a cough, or a fever, and particularly with what’s going on, now with COVID-19, that person has absolutely no business coming into the workplace. They should remain home and quarantine until they’re better or if they actually have been exposed to COVID-19 and think that might be what they have, until they can be tested and confirm that they do or don’t have it, and then follow the appropriate medical guidelines from there.

There is nothing in the discrimination laws that prohibit an employer from requiring an employee who does not feel well, who has a fever, has other symptoms consistent with this particular virus, or any other virus for that matter, from just staying home and not coming into work.

Separately from that, some employers might be thinking about implementing measures such as taking employee’s temperatures on their way into the workplace, at the start of an employee’s shift. That’s where we start getting into things that may create issues under the ADA. The ADA has specific rules as to when an employer can and cannot engage in a medical examination of employees during employment. During employment, you can only engage in a medical examination of an employee if it’s job-related and it’s a business necessity.

I could craft an argument that in an area with known COVID-19 spread, that checking employees’ temperatures is job-related and consistent with business necessity. The EEOC, however, takes a different view of that and generally prohibits employers from taking employees’ temperatures as a prophylactic measure. They view that as an impermissible medical examination under the ADA.

One potential exception to this would be in an area that the CDC designates as known wide-spread, community spread. New Rochelle, New York, for example, right now is not under a containment zone. I know they’ve brought the National Guard in to monitor who goes in and out of New Rochelle. An employer in a designated area of known wide-spread COVID-19 outbreak is probably going to be within its rights to do more screens that might be more likely to be deemed a medical examination, like taking employees’ temperatures on the way into the workplace.

The ADA and Other Disability Discrimination Law Implications

There are a whole bunch of people who are going to be traveling over the next two to four weeks because of spring break trips either for themselves or their kids or their families. Does an employer have to wait before someone exhibits symptoms before they can tell them not to come into work? Could an employer start asking them questions about where they were to determine if they were potentially exposed?

If someone travels out of the area, an employer is well within its rights to tell that person: “You need to quarantine for 14 days, don’t come into the workplace,” and ask them where they were, and if they were potentially exposed to anyone who had COVID-19 or COVID-19-like symptoms. There are no limits whatsoever in asking those questions of someone who has traveled or even telling someone “you traveled out of the area but don’t know if you’ve been exposed or not, we are requiring you to self-quarantine for 14 days and don’t come into work.” That can be unpaid, but my suggestion would be to treat that situation as paid leave. How employers handle that is going to vary from employer to employer.

There is a host of discrimination laws that could potentially be implicated. When this virus first started, it was being called the Wuhan coronavirus and there was a lot of concern about national origin discrimination, i.e., discrimination against people of Asian descent because of where the virus had its start.

Age discrimination is another potential concern if you’re screening out people of a certain age because they’re more susceptible to serious side effects of COVID-19. You need to be careful that you’re not invoking impermissible stereotypes in order to screen out a protected class or terminate people of a particular protected class or not hire people who are of a certain age because they’re more susceptible.

You may ask employees or applicants questions about their susceptibility to respiratory distress. You may ask those kinds of questions as long as you’re asking them of everybody and then making your decision based not on age but on a general susceptibility to respiratory distress. The ADA is the most obvious discrimination law that’s implicated, but there’s a host of other laws that could be implicated depending on how employers are responding to COVID-19.

How much information can an employer legally disseminate to others about employees’ COVID-19 diagnosis or exposure?

Some, but not a lot. The ADA has very specific confidentiality rules. An employer must keep employee medical information confidential and it can only disseminate to other employees, coworkers, on a need-to-know basis.

In terms of general dissemination, I think it’s OK to tell employees that someone in the workplace has been exposed to or has contracted COVID-19. That communication is fine because you’re making a general announcement that applies to all employees’ general well-being.

But under the ADA, going to employees and saying “Jimmy who’s over in shipping and receiving is out for the next two weeks because he has coronavirus,” goes too far and would breach medical confidentiality provisions under the Americans Disabilities Act.

If someone is out of work for a period of time, and your callout policy doesn’t require a reason, they just call out. Now if someone’s out five days in a row, the employer is within its rights to contact the employee and say we need some information as to why you are out. Is there any reason that’s causing you to be out? Direct a supervisor to contact that employee and gather information. It might be medical information but at that point, generally speaking, the supervisor has the same confidentiality requirements that apply to the employer.

Lastly, in terms of information a company can receive when someone is coming back to the workplace following a quarantine, COVID-19-related quarantine or recovering from the actual illness itself, the ADA and the Family and Medical Leave Act both allow an employer to gather what we call a fitness-for-duty certification that the person is illness-free and is okay to come back to the workplace.

One thing that employers need to keep in mind when dealing with these fitness-for-duty certifications particularly when we are now with doctor offices and emergency rooms and hospitals potentially flooded or looking at being flooded with patients, then employers need to have some flexibility with either who they take their certifications from or the certification provided. Because of how flooded our medical professionals might be in the coming weeks, they might not actually have the time to get to those certifications.

Are there issues with a senior living center taking the temperature of everyone who comes in?

Given the at-risk community that senior living centers are serving, the ADA does make an allowance for what it calls a direct threat. If you potentially pose a direct threat that is a serious risk of harm to yourself or others, there is an exception under the ADA. With a senior living, at-risk population, temperature screenings would be permissible either because: (1) people visiting might pose a direct threat and are not covered by the ADA; or (2) because of the population they service, the screenings themselves are job-related and consistent with business necessity. You want to make sure that someone’s not coming in who could potentially get a resident seriously ill.

What do you do when employees are too scared to even show up for work?

Fear of the virus, that is, fear of contracting an illness is not protected. If somebody says, “I don’t want to come to work, I’m staying in my house because I’m [not] sick, no medical reason to do so, I’m a healthy 35-year-old individual, I’m just so fearful of contracting COVID-19 that I’m not leaving my house until the government says this thing is gone.” That is fear of contracting an illness — and not a protected disability. Fear of contracting an illness is not a reason for protected leave of absence under FMLA. Similarly, for employees who travel for work and someone says, I don’t want to travel. The employer wants someone to go to Omaha, Nebraska, for a sales meeting and the employee says, “I don’t want to get coronavirus, I’m not getting on an airplane,” a refusal to travel in that case, as long as the travel isn’t to somewhere the CDC says you shouldn’t be traveling to — like China or Italy or Korea or Japan — a refusal to travel in that case, in my mind, is also not protected and would be subject to the same discipline that any other refusal to follow a job order would be subject to.

There are legal issues, human issues, and business issues, and they all intersect here. Every company is going to have to decide how to answer these questions for itself, its customers, its people and as best as possible to keep its business running during a pandemic. But this is a situation where I think the people issues more often than not are going to trump businesses and I think businesses need to be nimble in how they respond to make sure their people are taken care of.

Assistant Editor Brittany Smith contributed to this article. 

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