This is an informational resource for employers responding to the recent COVID-19 pandemic. This post addresses both medical privacy concerns under the ADA and employee protection concerns under OSHA. Please be aware, the information provided is not legal advice and the issues and legal concerns mentioned will likely change as the spread of this virus and its impact continues to grow and evolve.
In response to COVID-19, employers face—what can feel like—conflicting obligations. On the one hand, employers have an obligation to protect their employees’ medical privacy, and on the other hand, they have an obligation to protect their employees from a known hazard. Below are links to, and excerpts from, publications prepared by government agencies in response to COVID-19 and the 2009 H1N1 influenza pandemic. These publications address what an employer can and cannot do during a pandemic.
EEOC – Pandemic Preparedness and the ADA
In 2009, the Equal Employment Opportunity Commission (“EEOC”) published a piece titled “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act,” available at the following link.
This EEOC publication addresses questions frequently asked about workplace pandemic planning such as:
- How much information may an employer request from an employee who calls in sick, in order to protect the rest of its workforce when an influenza pandemic appears imminent?
- When may an ADA-covered employer take the body temperature of employees during a pandemic?
- Does the ADA allow employers to require employees to stay home if they have symptoms of the pandemic influenza virus?
- When employees return to work, does the ADA allow employers to require doctors’ notes certifying their fitness for duty?
Below is a cut and paste of the section which discusses actions an employer may take during an influenza pandemic (the fact specific examples in the excerpt were removed in the interest of brevity). As noted above, this was written in 2009 in response to H1N1. It should be treated as informational only.
DURING AN INFLUENZA PANDEMIC
The following questions and answers discuss employer actions when the WHO and the CDC report an influenza pandemic.
May an ADA-covered employer send employees home if they display influenza-like symptoms during a pandemic?
Yes. The CDC states that employees who become ill with symptoms of influenza-like illness at work during a pandemic should leave the workplace. Advising such workers to go home is not a disability-related action if the illness is akin to seasonal influenza or the 2009 spring/summer H1N1 virus. Additionally, the action would be permitted under the ADA if the illness were serious enough to pose a direct threat.
During a pandemic, how much information may an ADA-covered employer request from employees who report feeling ill at work or who call in sick?
ADA-covered employers may ask such employees if they are experiencing influenza-like symptoms, such as fever or chills and a cough or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.
If pandemic influenza is like seasonal influenza or spring/summer 2009 H1N1, these inquiries are not disability-related. If pandemic influenza becomes severe, the inquiries, even if disability-related, are justified by a reasonable belief based on objective evidence that the severe form of pandemic influenza poses a direct threat.
During a pandemic, may an ADA-covered employer take its employees’ temperatures to determine whether they have a fever?
Generally, measuring an employee’s body temperature is a medical examination. 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. However, employers should be aware that some people with influenza, including the 2009 H1N1 virus, do not have a fever.
When an employee returns from travel during a pandemic, must an employer wait until the employee develops influenza symptoms to ask questions about exposure to pandemic influenza during the trip?
No. These would not be disability-related inquiries. If the CDC or state or local public health officials recommend that people who visit specified locations remain at home for several days until it is clear they do not have pandemic influenza symptoms, an employer may ask whether employees are returning from these locations, even if the travel was personal.
During a pandemic, may an ADA-covered employer ask employees who do not have influenza symptoms to disclose whether they have a medical condition that the CDC says could make them especially vulnerable to influenza complications?
No. If pandemic influenza is like seasonal influenza or the H1N1 virus in the spring/summer of 2009, making disability-related inquiries or requiring medical examinations of employees without symptoms is prohibited by the ADA. However, under these conditions, employers should allow employees who experience flu-like symptoms to stay at home, which will benefit all employees including those who may be at increased risk of developing complications.
If an employee voluntarily discloses (without a disability-related inquiry) that he has a specific medical condition or disability that puts him or her at increased risk of influenza complications, the employer must keep this information confidential. The employer may ask him to describe the type of assistance he thinks will be needed (e.g. telework or leave for a medical appointment). Employers should not assume that all disabilities increase the risk of influenza complications. Many disabilities do not increase this risk (e.g. vision or mobility disabilities).
If an influenza pandemic becomes more severe or serious according to the assessment of local, state or federal public health officials, ADA-covered employers may have sufficient objective information from public health advisories to reasonably conclude that employees will face a direct threat if they contract pandemic influenza. Only in this circumstance may ADA-covered employers make disability-related inquiries or require medical examinations of asymptomatic employees to identify those at higher risk of influenza complications.
May an employer encourage employees to telework (i.e., work from an alternative location such as home) as an infection-control strategy during a pandemic?
Yes. Telework is an effective infection-control strategy that is also familiar to ADA-covered employers as a reasonable accommodation.
In addition, employees with disabilities that put them at high risk for complications of pandemic influenza may request telework as a reasonable accommodation to reduce their chances of infection during a pandemic.
During a pandemic, may an employer require its employees to adopt infection-control practices, such as regular hand washing, at the workplace?
Yes. Requiring infection control practices, such as regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal, does not implicate the ADA.
During a pandemic, may an employer require its employees to wear personal protective equipment (e.g., face masks, gloves, or gowns) designed to reduce the transmission of pandemic infection?
Yes. An employer may require employees to wear personal protective equipment during a pandemic. However, where an employee with a disability needs a related reasonable accommodation under the ADA (e.g., non-latex gloves, or gowns designed for individuals who use wheelchairs), the employer should provide these, absent undue hardship.
May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?
No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).
Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.
During a pandemic, must an employer continue to provide reasonable accommodations for employees with known disabilities that are unrelated to the pandemic, barring undue hardship?
Yes. An employer’s ADA responsibilities to individuals with disabilities continue during an influenza pandemic. Only when an employer can demonstrate that a person with a disability poses a direct threat, even after reasonable accommodation, can it lawfully exclude him from employment or employment-related activities.
If an employee with a disability needs the same reasonable accommodation at a telework site that he had at the workplace, the employer should provide that accommodation, absent undue hardship. In the event of undue hardship, the employer and employee should cooperate to identify an alternative reasonable accommodation.
…
During a pandemic, may an employer ask an employee why he or she has been absent from work if the employer suspects it is for a medical reason?
Yes. Asking why an individual did not report to work is not a disability-related inquiry. An employer is always entitled to know why an employee has not reported for work.
…
This EEOC publication (cut and pasted above) does not address a more common question of what to do when an employee tests positive for COVID-19. In this situation, an employer must balance the concern for medical privacy of the infected individual and the obligation to protect employees who came in contact with the infected individual. Given the severity of this pandemic, employers may take the step of sending all employees who worked closely with infected employee home for a 14-day period of time to ensure the infection does not spread, or in the alternative, employers should notify such employees that they may be at risk and to closely monitor the development of symptoms. When sending employees home or notifying them of exposure, employers should not identify by name the infected employee or they risk a violation of confidentiality laws. You may also want to consider asking a cleaning company to undertake a deep cleaning of affected workspaces.
OSHA
Health and safety in the workplace is regulated by the federal Occupational Safety and Health Act (“OSHA”). OSHA imposes legal obligations on employers through industry-specific safety standards and the general duty clause.
OSHA General Duty Test
OSHA’s general duty clause may provide the basis for a citation against an employer where an employer fails to respond adequately to the effects of COVID-19 in the workplace. This general duty clause requires employers to furnish to each worker employment and a place of employment, which is free from recognized hazards that are causing or are likely to cause death or serious physical harm.
In a pandemic, an employer may be cited for a general duty clause violation by OSHA if the virus was present in the workplace and the employer’s efforts to control exposure were insufficient, or an employee was required to perform tasks that exposed them to the hazard of the virus.
OSHA Guidance for Businesses
OSHA recently published Guidance on Preparing Workplaces for COVID-19, outlining steps employers can take to help protect their workforce. This guide is available at this link.
OSHA has divided workplaces and work operations into four risk zones, based upon the likelihood of employees’ occupational exposure during a pandemic. These risk zones determine the recommended work practices and precautions. The risk zones are as follows:
Very High/High Exposure Risk:
- Healthcare or laboratory personnel collecting or handling specimens from known or suspected pandemic patients.
- Healthcare delivery and support staff exposed to known or suspected pandemic patients.
- Medical transport of known or suspected pandemic patients in enclosed vehicles.
- Performing autopsies on known or suspected pandemic patients.
Medium Exposure Risk:
- Employees with high-frequency contact with the general population (such as schools, high population density work environments, and some high-volume retail).
Lower Exposure Risk (Caution):
- Employees who have minimal occupational contact with the general public and other coworkers (such as office employees).
Please visit the guide for specific recommended workplace control measures based upon the respective risk zone (listed above). This guide is available here.
OSHA – Reportable Event
Work-related illnesses that meet certain criteria must be recorded on an employer’s OSHA 300 Log and an OSHA 301 Injury and Illness Incident Report (or their equivalents). Specifically, OSHA’s recordkeeping regulations require covered employers to record new cases that involve:
- Death.
- Days away from work.
- Restricted work or job transfer.
- Medical treatment beyond first aid.
- Loss of consciousness.
- A significant injury or illness diagnosed by a physician or medical healthcare professional.
OSHA has explicitly stated that COVID-19 is not a “common cold or flu” exempted from its recordkeeping requirements. Thus, employers are required to record COVID-19 cases as a recordable illness if the employee is infected on the job. Visit OSHA’s website on injury and illness recordkeeping and reporting requirements for more information, available here.
CDC Guidance for Businesses
In addition, the U.S. Centers for Disease Control and Prevention has developed interim guidance for businesses and employers to plan for and respond to COVID-19, available at: