Coronavirus concerns are international. Universities are cancelling in-person classes. Professional and collegiate sporting events are being cancelled. Travel bans are in place. In New York state, the National Guard was deployed in an effort to create a “containment zone” in New Rochelle. But what can employers do when faced with issues created by the Coronavirus?
The EEOC weighed in on this issue last week, and provided some helpful guidance on how employers can manage Coronavirus concerns and still comply with the ADA. I have summarized the EEOC’s answers to 3 key questions below.
In an effort to protect their workforce, how much information may an employer request from an employee who calls in sick?
The EEOC stated that ADA-covered employers may ask the employees if they are experiencing flu-like symptoms, such as fever or chills and a cough or sore throat. This information must be maintained by the employer in a confidential medical record in compliance with the ADA. Furthermore, the EEOC stated that these inquiries are not disability related if Coronavirus is like the seasonal flu. And, if the Coronavirus becomes more severe, the inquiries, even if disability-related, are justified by a reasonable belief based on objective evidence that the severe form of Coronavirus poses a direct threat to the health and safety of other employees.
Does the ADA allow employers to require employees to stay home if they have Coronavirus symptoms?
Yes. Employees who become ill at work with flu-like symptoms should leave work and advising them to do so is not a disability-related action. And, sending them home would be permitted if the illness were more severe, as the individual would pose a direct threat to the health and safety of others.
While not addressed by the EEOC, sending an employee who has a severe case of Coronavirus home may be required under OSHA’s “General Duty Clause”, which requires employers to furnish a “place of employment … free from recognized hazards that are causing or likely to cause the death or serious physical harm to … employees.”
The EEOC also confirmed that the ADA allows employers to require a doctor’s note certifying the employee’s fitness for duty when returning to work. Again, this is not a disability-related inquiry, and if the illness is severe, the inquiry would still be justified to avoid a direct threat.
The EEOC’s Guidance does not address whether an employee who is sent home must be paid, because that is not one of the laws the EEOC enforces. That answer depends on whether any work is performed and whether the employee is non-exempt or exempt under the FLSA.
Hourly employees are only paid for hours worked, so if an employee will be working from home he or she must be paid for the actual time worked. If the hourly employee will not be working from home, he or she gets no pay while out of work. An employer can allow the employee to use accrued PTO or sick leave. Salaried, exempt employees must be paid their normal weekly salary if the employee performs any work that week.
The Coronavirus is definitely cause for concern. Employers who act responsibly and in accordance with the EEOC and other guidance, don’t have to add employment law concerns to the list.