The Americans with Disabilities Act (“ADA”) requires employers that obtain medical information through inquiry or examination to maintain this medical information in confidential medical files, separate from employee personnel files. Providing that employers continue to maintain the confidentiality of medical information; employers are allowed to make certain inquiries and requirements of employees with respect to COVID-19.
If an employee becomes ill at work with COVID-19 associated symptoms, an employer can ask the employee to leave and such action will not be considered a disability-related action that could lead to liability under the ADA. Employers can require employees to inform them if they have been tested for COVID-19 and if they tested positive regardless of whether they become ill. Employers can ask employees about potential exposure to COVID-19 and if they have been in close contact with someone who has tested positive for COVID-19, but the employer cannot ask the employee to reveal the identity of the COVID-19 positive individual.
If an employee tests positive for COVID-19, employers are encouraged to investigate that employee’s exposure to others in the workplace, but the employer cannot disclose to other employees the name of the individual who tested positive or any personally identifiable information about the positive employee. However, the confidentiality provisions of the ADA do not prohibit the disclosure to state, local or federal health departments and agencies of a positive COVID-19 test.
Employers can take employee temperatures and maintain a confidential log of the results. Employers can require employees to be tested for COVID-19 before reporting and/or returning to work. Employers can also require employees to provide a doctor’s note for return to work after being ill with COVID-19. Employers cannot ask employees if they have other medical conditions that could make them more susceptible to COVID-19.
During the pandemic, if an employee requests an accommodation for a medical condition either for work at home or in the workplace, the employer may ask for information to determine if the condition is a disability. If there is some urgency to providing the accommodation or if the employer has a limited amount of time to discuss the request with employee, the employer may provide a temporary accommodation, and after the government restrictions are partially or fully lifted, the need for the accommodation may change and the employer an engage in the interactive process. Employers can ask employees now if they will need a reasonable accommodation in the future when the employee returns to work if the employee has a known disability prior to the pandemic.
Families First Coronavirus Response Act
The Emergency Paid Sick Leave Act (“EPSLA”) and the Emergency Family and Medical Leave Expansion Act (“EFMLEA”) that were passed as part of the Families First Coronavirus Response Act passed on March 18, remains in effect until December 31, 2020. Employers are still required to abide by these leave acts upon reopening business for all employees who have not previously utilized leave under these acts.
The EPSLA requires employers to provide 80 hours of paid sick leave for full-time employees, and paid sick leave to part-time employees based on the average number of hours the part-time employee works. The EPSLA is triggered when an employee is unable to work or telework because: (1) the employee is subject to a federal, state or local quarantine or isolation order; (2) the employee has been told by a health care provider to self-quarantine; (3) the employee is experiencing symptoms of COVID-19; (4) the employee is caring for an individual subject to quarantine or isolation order or instructed by a health care provider to self-quarantine; and/or (5) the employee is caring for the employee’s child if the child’s school or place of care is closed or unavailable because of COVID-19 precautions.
The EFMLEA provides up to 12 weeks of leave for an eligible employee to care for his or her child (including biological, adopted or foster child; a stepchild; a legal ward; or a person taking the place of a parent) under 18 whose school or place of care has been closed, or whose care provider is unavailable due to a COVID-19-related emergency. The initial 10 days of the leave are unpaid, but if the leave extends beyond 10 days, the employee must be paid two-thirds of his or her normal rate of pay for the number of hours the employee normally would be scheduled.
Employers must comply with all federal, state and local directive including the wearing of face masks and social distancing. The social distancing rules should be communicated in written form to employees.
For additional guidance on the interplay between the ADA and other discrimination laws, and return to work considerations, visit the EEOC COVID-19 website at https://www.eeoc.gov/coronavirus