By Mark T. Sottile, Esq.
As the reported coronavirus death and hospitalization rates begin to level in the country’s most hard hit areas, a collective restlessness, surely amplified by welcoming spring weather, has pushed Americans in droves to city parks and still technically shuttered beaches. Even in the most devastated states, like New York and New Jersey, there is an increasingly boisterous call to ease restrictions on certain businesses, whereas Georgia’s reopening has been met with raucous appreciation by some residents eager to end their lockdown.
The nation’s attempted return to normality will surely be punctuated by multiple fits and starts as public officials grapple with balancing the containment of the coronavirus and revitalizing economic activity. Such uncertainty will hamper businesses, which are unprepared to handle the coronavirus and the complex array of state and federal employment discrimination laws, which are implicated. Absent a vaccine, a breakthrough which is all but impossible in the near-term, employers will be forced to adapt and evolve to not only protect their employees, but thwart potential discrimination lawsuits concerning their management of the virus in the workplace. Of particular importance is the intersection of the coronavirus and the Americans with Disabilities Act as Amended (ADA), a federal law which shields employees from discrimination and retaliation based on an actual or perceived disability. Navigating ADA compliance with respect to the novel virus, as employers seek to safeguard the health of their employees, will cause numerous difficulties for human resources professionals and in-house counsel. Thus, it is essential that employers are cognizant of which steps they can take to keep their workforce and customer base safe, while not running afoul of the ADA.
It must first be emphasized that the current pandemic and its far-reaching economic consequences do not absolve otherwise covered employers from complying with the ADA. If an employer is set to initiate lay-offs, close certain offices, issue salary cuts, or alter the schedule of certain employees, these measures must be taken with an eye towards ADA compliance. For example, despite a decline in revenue, which prompts a restaurant to reduce the hours of certain kitchen staff, absent extreme circumstances, the revised schedules must still allow for disabled employee’s medical appointments, need for time-off, and any other requested accommodations, which would have been regularly granted prior to the advent of the novel coronavirus.
Specific to the current pandemic, operating with the understanding that the novel coronavirus is a disability under the ADA—remember this is unchartered legal territory— employers are permitted to send an employee home if she is exhibiting typical symptoms like a fever, cough, or difficulty breathing. The ADA includes a “direct threat” provision, which allows the employer to take certain measures which would normally be prohibited by the ADA if an employee’s medical condition is posing a risk to the health of colleagues and customers. If necessary, the employer may engage in further inquiry about the employee’s symptoms and related information, but the contents of the conversation must remain confidential due to HIPAA considerations. If the employee is sent home and quarantined, the employer may also require a doctor’s note before she returns to work—a standard practice for established ADA disabilities. Although the employer should be mindful of the ADA, given the severity of the pandemic and the heightened importance of providing a safe workplace, it is wise to err on the side of taking a vigilant approach to protecting employees from the virus, including asking the right questions about symptoms and if appropriate, taking an employee’s temperature and ordering immediate testing. This does not justify probing the employee’s family medical history or seeking other background information unrelated to the coronavirus.
Additional workplace health policies specific to the coronavirus, which are permitted under the ADA include mandatory handwashing, social distancing requirements, the cordoning off of breakrooms where employees tend to congregate, and mandating the wearing of masks. To the extent a public medical agency seeks information about the identity of an employee who has been diagnosed with the coronavirus, this can be provided consistent with the ADA and HIPAA. An employee’s confidential medical records should be separated from her basic personnel file to avoid inadvertent disclosure of health status.
The hiring process is also altered by the current pandemic. Under the ADA, again keeping in mind the “direct threat” provision and the highly transmissible nature of the coronavirus, employers may inquire about whether the applicant has experienced the associated cough, fever, or trouble breathing. Employers may also instruct a new hire to self-quarantine before starting work if she was recently diagnosed with the coronavirus or suffered the classic symptoms. If an employer has an urgent hiring need and an applicant has the virus, an offer can be withdrawn without violating the ADA.
As a reference point, human resource professionals, in-house counsel, and business owners, should review the Equal Employment Opportunity Commission’s (EEOC) website, which issues guidance for employers on managing the coronavirus in the workplace. The guidelines were specifically designed for the H1N1 outbreak in 2009 for which the EEOC issued a memorandum entitled “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act.” The communication outlines procedures which grant employers wide latitude to protect employees from the virus. It is appropriately tailored for the unprecedented nature of this health and economic crisis, with comprehensive instructions on workplace safety. As the coronavirus pandemic is extremely fluid, employers should also monitor updates from state and local public health authorities as well as the CDC.