The COVID-19 pandemic affects us all. It's particularly hard on small and medium business and entrepreneurs who don't have ready access to legal help to deal with its employment law ramifications. Fortunately the EEOC has published some helpful information that provides useful guidance for dealing with employees who are sick, may be sick, or so far are healthy. The guidance is called "What You Should Know About the ADA, the Rehabilitation Act, and COVID-19," updated on December 16, 2020. The Covid situation continues to change rapidly, so check government sources for updates or consult with employment counsel.
In short, general ADA principles apply. However, that doesn't mean that the law requires us to act stupidly.
- ADA rules still apply, but do not prevent employers from following the latest guidelines from the CDC or state/local health authorities. Because those guidelines will change over time due to the evolving nature of the pandemic, stay up to date and follow the most current guidance on workplace safety..
- Earlier EEOC guidance about preparing the workplace for a pandemic, issued in connection with the H1N1 flu epidemic, still applies.
Here are some answers to specific questions.
- How much information may an employer request from an employee who calls in sick in order to protect its workforce during the pandemic? Answer: employers may ask whether the employee has symptoms of the pandemic virus, in this case fever, chills, shortness of breath, a cough or sore throat. The information must be maintained in confidence.
- Can an employer take an employee's body temperature? Answer: for purposes of the pandemic, yes, recognizing that not all who are afflicted with COVID-19 have a fever.
- If an employee has symptoms of COVID-19, can her employer require her to stay home? Answer: yes.
- Can employers require a doctor's note before an employee is allowed to return to work? Answer: yes, with the caveat physician notes are going to be difficult to come by for a while, so alternatives like forms from local clinics, stamps, and emails may be satisfactory substitutes for a doctor's note.
- There are additional examples on how to handle employee testing.
Even though the EEOC Guidance helps, remember that navigating the disability laws is not something to be tried on your own. If your particular situation is not clearly addressed by the Guidance please contact an employment attorney for help. "Better safe than sorry" is the best course of action when dealing with areas that could implicate claims of employment discrimination, especially when the workforce is subject to economic stress and everyone is understandably feeling pressured.
Steinberg Law, LLC is here to help. Because we're dealing with same issues as other businesses, please reach out to us both by email and telephone so we can respond to you promptly.