Coronavirus Advisory: Keep your workforce safe while complying with ADA, OSHA and HIPAA, sponsored by Roedel Parsons

Americans With Disabilities Act and Rehabilitation Act

The Americans With Disabilities Act (“ADA”) and the Rehabilitation Act are both forms of federal equal employment opportunity laws that are particularly impacted by COVID-19.

The Equal Employment Opportunity Commission (“EEOC”) enforces workplace anti-discrimination laws, including the ADA and the Rehabilitation Act. The ADA and Rehabilitation Act rules continue to apply, but they do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state and local public health authorities about steps employers should take regarding COVID-19. The EEOC has provided the following guidance for employers related to the ADA and the Rehabilitation Act:

How much information may an employer request from an employee who calls in sick, in order to protect the rest of its workplace during the COVID-19 pandemic?

During a pandemic, ADA-covered employers may ask such employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.

When may an ADA-covered employer take the body temperature of employees during the COVID-19 pandemic?

Generally, measuring an employee’s body temperature is a medical examination. Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees’ body temperature. Please note, however, that some people with COVID-19 may not have a fever.

Does the ADA allow employers to require employees to stay home if they have symptoms of COVID-19?

Yes. The CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace. The ADA does not interfere with employers following this advice.

An employee of ours has tested positive for COVID-19. What should we do?

First, don’t panic. There are protocols recommended by the CDC and EEOC to guide employers regarding steps to take if an employee has tested positive. The most urgent thing to do is to isolate the employee and keep him/her out of work until they can provide a physician’s statement saying that the employee is not contagious and is safe to be around others. The same goes for suspected cases as well—it’s advisable to treat suspected cases the same as confirmed cases, at least until it can be confirmed that the employee has tested negative for COVID-19.

It is acceptable to require the employee to provide the employer a doctor’s note certifying their fitness to return to work before returning. Such inquiries are permitted under the ADA either because they would not be disability-related or, if the pandemic were to be consider severe enough to qualify as a disability, employers would be justified in requesting the doctor’s note under the ADA standards for disability-related inquiries of employees. That said, it is unlikely, as a practical matter, that employees who are healthy enough to return to work will be able to obtain a doctor’s note for that purpose, given that doctors are likely to have the vast majority of their time committed to treatment of patients. In fact, the U.S. Department of Labor (OSHA) recommends against requiring an employee to obtain a doctor’s note clearing them to return to work before allowing them to return. See the OSHA guidance here. An employer could and should, however, develop new approaches to ensure the employee is healthy enough to return to work, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that the employee does not have the COVID-19 virus.

Additionally, the CDC advises that you send home all employees who worked closely with that employee for a 14-day period of time to ensure the infection does not spread. Before the employee departs, ask them to identify all individuals who worked in close proximity (three to six feet) with the infected employee in the previous 14 days to ensure you have a full list of those who should be sent home. When sending the employees home, do not identify by name the infected employee or you could risk a violation of confidentiality laws. If you work in a shared office building or area, you should inform building management so they can take whatever precautions they deem necessary. You should also notify the Louisiana Department of Health for further instructions and on possible notification to others. You can access the LDH’s website here.

For guidance from the CDC for most non-healthcare businesses that have suspected or confirmed COVID-19 cases on how to clean and disinfect your workplace, please click this link to the CDC’s website.

Can we ask an employee to stay home or leave work if they only showing symptoms of the COVID-19 coronavirus or the flu but haven’t tested positive yet?

Yes, the EEOC has confirmed that advising workers to go home is permissible and not considered disability-related discrimination if the symptoms present are akin to the COVID-19 coronavirus or the flu. You may also ask them to seek medical attention and get tested for COVID-19. We recommend against asking an employee directly if they have COVID-19 coronavirus.

Additionally, the EEOC has also confirmed that measuring employees’ body temperatures is permissible given the current circumstances, even though it is generally considered a “medical examination” that is prohibited under the ADA. Some employers are using this as a means of preventing spread in the workplace.

How can we distinguish between a “suspected but unconfirmed” case of COVID-19 and a typical illness?

Unfortunately, there is no easy way for employers to distinguish between suspected COVID-19 cases and typical illnesses, but you should let logic guide your thinking. The kinds of indicators that will lead you to conclude an illness could be a suspected but unconfirmed case of COVID-19 include whether that employee traveled to a restricted area that is under a Level 2, 3, or 4 Travel Advisory according to the U.S. State Department, whether that employee was exposed to someone who traveled to one of those areas, or similar facts. You should err on the side of caution but not panic.

The EEOC has confirmed that you can inquire into an employee’s symptoms, even if such questions are disability-related, as you would be considered to have a “reasonable belief based on objective evidence that the severe form of pandemic influenza poses a direct threat.” Inquiries into an employee’s symptoms should attempt to distinguish the symptoms of COVID-19 from the common cold and the seasonal flu. This should include inquiries into whether an employee is experiencing:

Fever
Fatigue
Cough
Sneezing
Aches and pains
Runny or stuffy nose
Sore throat
Diarrhea
Headaches
Shortness of breath

It is important to remember that you must maintain all information about employee illness as a confidential medical record in compliance with HIPAA and the ADA.

Can we require an employee to notify the company if they have been exposed, have symptoms, and/or have tested positive for the COVID-19 coronavirus?

Yes, you should require any employee who becomes ill at work with COVID-19 coronavirus symptoms to notify their supervisor. Employees who are suffering from symptoms should be directed to remain at home until they are symptom-free for at least 24 hours. See above regarding whether an employer may require a doctor’s note confirming that the employee does not have COVID-19 coronavirus prior to allowing them to return to work.

While outside of work, if an employee begins experiencing symptoms, has been exposed to someone that is exhibiting symptoms, or has tested positive, the employee should contact your company by telephone or email and should not report to work.

What actions can we take if an employee appears symptomatic but refuses to leave the workplace?

First, try to reason with the employee and take a collaborative approach. If there are benefits available such as paid sick leave, use of accrued vacation, or something else that may appease them, you should explain these benefits and how the employee can utilize them. Also, see our Firm’s Small- and Medium-Sized Business Toolkit section on the Families First Coronavirus Response Act (“FFCRA”) regarding emergency sick leave that an employer must provide an employee under various circumstances, including where the employee contracts COVID-19 coronavirus or is caring for someone that is quarantined.

If the employee still refuses to leave the workplace, you can consider (a) explaining that the employee is now trespassing on private property and if they do not leave you will be forced to call local law enforcement to escort them off the premises; or (b) terminating the employee for insubordination. Termination of the employee, however, should be considered a last resort. Given the current climate, you will need to also consider public perception related to taking overly strong adverse action against an employee expressing concerns or apprehension related to the coronavirus.

If an employer is hiring, may it screen applicants for symptoms of COVID-19?

Yes. An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job. However, please note that inquiring into “conditions” (e.g., “Do you have COVID-19?”) may be prohibited under the ADA, while merely inquiring about “symptoms” is permissible.

May an employer take an applicant’s temperature as part of a post-offer, pre- employment medical exam?

Yes. Any medical exams are permitted after an employer has made a conditional offer of employment. Please note, however, that some people with COVID-19 may not have a fever.

May an employer delay the start date of an applicant who has COVID-19 or symptoms associated with the virus?

Yes. According to current CDC guidelines, an individual who has COVID-19 or symptoms associated with the virus should not be in the workplace.

May an employer withdraw a job offer when it needs the applicant to start immediately, but the individual has COVID-19 or symptoms related to it?

Based on current CDC guidance, this individual cannot safely enter the workplace, and, therefore, the employer may withdraw the job offer.

Source: What You Should Know About the ADA, the Rehabilitation Act, and COVID-19, U.S. EEOC (Mar. 19, 2020).

Occupational Safety and Health Act

Is your business providing its employees with a hazard-free workplace during the coronavirus pandemic?

OSHA requires employers to comply with safety and health standards and regulations promulgated by OSHA or by a state with an OSHA-approved state plan. Additionally, the law requires employers to provide their employees with a workplace free from recognized health hazards likely to cause death or serious physical harm.

Get more about this topic and other comprehensive information in the
‘COVID-19 Toolkit for Small- and Medium-Sized Businesses’ from Roedel Parsons here.

According to the Occupational Safety and Health Administration, all employers can take the following steps to reduce workers’ risk of exposure to the coronavirus:

Develop an infectious disease preparedness and response plan

If one does not already exist, OSHA encourages you to develop an infectious disease preparedness and response plan that can help guide protective actions against COVID-19. Plans should consider and address the levels of risk associated with various worksites and job tasks workers perform at those sites.

Prepare to implement basic infection prevention measures

OSHA recommends that, as appropriate, all employers implement good hygiene and infection control practices, including, but not limited to: promote frequent and thorough hand washing; encourage workers to stay home if they are sick; encourage respiratory etiquette; and provide customers and the public with tissues and trash receptacles.

Develop policies and procedures for prompt identification
and isolation of sick people, if appropriate

According to OSHA, employers should develop policies and procedures to report when they are sick or experiencing symptoms of COVID-19. Where appropriate, employers should also develop policies and procedures for immediately isolating people who have signs or symptoms of COVID-19.

Develop, implement, and communicate about
workplace flexibilities and protections

The top recommendation from OSHA on this point is to actively encourage sick employees to stay home. Also, ensure that sick leave policies are flexible and consistent with public health guidance and that employees are aware of these policies.

Implement workplace controls

It may not be possible to rely solely on workers to reduce their exposure to the virus. Instead, OSHA recommends implementing a hierarchy of controls to systematically remove the danger from the workplace, including: isolating employees from work-related hazards; changing work policies or procedures to reduce or minimize exposure to the hazard; implementing procedures for safe and proper work used to reduce the duration, frequency, or intensity of exposure to the hazard; and using personal protective equipment.

Follow existing OSHA standards

Finally, employers should continue to follow existing OSHA standards. While there are no specific OSHA standards covering coronavirus exposure, some OSHA requirements may apply to preventing occupational exposure to the virus.

Answers to frequently asked questions

Can employers in the United States refuse an employee’s request to wear a medical mask or respirator?

Under most circumstances, yes, employers may refuse employee’s request to wear medical masks or respirators. The OSHA respiratory guideline, 29 C.F.R. 1910.134, covers the use of most safety masks in the workplace. Under this rule, a respirator must be provided to employees only “when such equipment is necessary to protect the health of such employees.” Likewise, OSHA rules provide guidance on when a respirator is not required: “an employer may provide respirators at the request of employees or permit employees to use their own respirators, if the employer determines that such respirator use will not in itself create a hazard” (29 C.F.R. 1910.134(c)(2)).

Per the CDC’s current guidelines, there is no recognized health or safety need for the general public to wear face masks or respirators – even when employees work near other people.

Can an employee refuse to work without a mask?

OSHA rules only give an employee the right to refuse to do a task when all of the following conditions are met:

Where possible, you have asked the employer to eliminate the danger, and the employer failed to do so;
You refused to work in “good faith.” This means that you must genuinely believe that an imminent danger exists;
A reasonable person would agree that there is a real danger of death or serious injury; and
There isn’t enough time, due to the urgency of the hazard, to get it corrected through regular enforcement channels, such as requesting an OSHA inspection.

Given the current CDC consensus that face masks are only necessary when treating or interacting with someone who is or may be infected with the COVID-19 coronavirus or influenza, masks are likely not necessary to protect the health of most employees. Therefore, most employers do not have to provide, or allow employees to wear, a surgical mask or respirator to protect against the spread of the COVID-19 coronavirus or influenza.

Do COVID-19 infections need to be recorded in OSHA injury and illness logs?

Yes. OSHA recordkeeping requirements mandate covered employers record certain work-related injuries and illnesses on their OSHA 300 log. With regard to COVID-19, OSHA recently published guidance on this issue. You must record instances of workers contracting COVID-19 if the worker contracts the virus while on the job. The illness is not recordable if worker was exposed to the virus while off the clock. You are responsible for recording cases of COVID-19 if:

The case is a confirmed case of COVID-19;
The case is work-related, as defined by 29 CFR 1904.5; and
The case involves one or more of the general recording criteria set forth in 29 CFR 1904.7 (e.g. medical treatment beyond first-aid, days away from work).

For more information, please visit OSHA’s Guidance on Preparing Workplaces for COVID-19.

Health Insurance Portability and Accountability Act

Covered entities may not disclose protected health information (“PHI”) under HIPAA.

Employers should remain mindful that employees’ medical information is confidential and should not be shared with others. If an employee tests positive or presumptively positive for COVID-19, the employer should not—under any circumstances—identify such employee. However, the employer can, and should, advise coworkers that an employee has tested positive, and should then follow the steps discussed above under the ADA and OSHA sections, including immediately physically separating the employee who has tested positive.

As you know, patients’ medical and health information (called “Protected Health Information” or PHI) is protected by HIPAA. The COVID-19 outbreak is raising new questions about employees’ rights to privacy under HIPAA and the protection of coworkers, customers, and others. Here is a quick breakdown on how an employer can comply with HIPAA and still keep other employees, customers and other persons safe.

• HIPAA protects an employee’s PHI but is balanced to ensure that appropriate uses and disclosures of such information may be made—even without the employee’s consent—when necessary to treat the employee, to protect the nation’s public health, and for other critical purposes;

• More specifically, employers may disclose, without an employee’s authorization, PHI about the employee as necessary to treat the employee or treat a different patient, such as providing information to health care providers and first responders;

• Employers may also disclose, without an employee’s authorization, PHI about the employee to a public health authority, such as the Centers for Disease Control or a state or local health department that is authorized by law to collect or receive such information;

• Employers may also disclose, without an employee’s authorization, PHI about the employee at the direction of a public health authority to a foreign government agency that is acting in collaboration with the public health authority; and

• Finally, employers may disclose, without an employee’s authorization, PHI about the employee as necessary to persons at risk of contracting or spreading a disease or condition if other law, such as state law, authorizes the employer to notify such persons as necessary to prevent or control the spread of the disease or otherwise carry out public health interventions or investigations.

The employer that chooses to make any disclosure of PHI without the employee’s authorization must make reasonable efforts to limit the amount of information disclosed to that which is the “minimum necessary” to accomplish the purpose.

For additional information, please visit this link.

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