Employers have many concerns for their employees and their businesses during the COVID-19 pandemic. In the second part of the continuing webinar series, “Navigating the Outbreak,” hosted by the Associated General Contractors on March 24, presenters Patricia Anderson Pryor, principal and litigation manager of the Cincinnati, Ohio, office of Jackson Lewis P.C. and Leslie Stout-Tabackman, principal in the Washington, D.C., region office, provided insights regarding employers’ responsibilities for privacy considerations and safety during the pandemic.
Pryor recommended that individuals speak directly with legal counsel regarding any course of action for specific advice for these circumstances, and both presenters recommended checking federal, state and local directives to determine the best course of action.
Here are some major takeaways from the presentation.
Americans with Disabilities Act considerations
The Americans with Disabilities Act, or ADA, requires that employers make reasonable accommodation for employees with disabilities, unless it creates undue hardship. That accommodation might mean removing non-essential tasks, providing modified equipment, leaves of absence, modified work schedules and working from home, says Pryor.
If an employee does not want to come to work due to health concerns, employers must engage with the employee, says Pryor. “You want to engage in that process, and not just cut the employee off. If they’re expressing concerns you want to find out the why,” she says. Pryor recommends focusing on two areas:
- Talk with the employee about the safety of the workplace. Your employee may have a legitimate concern that could be protected under the Occupational Safety and Health Administration or the National Labor Relations Act – for example, another employee may have been diagnosed with COVID-19, and is still coming to work, says Pryor.
- Provide employees the opportunity to discuss health risks posed by the workplace. Employers CANNOT ask employees about these health risks, but when engaged, employees can disclose concerns, says Pryor; for example, an employee with reduced immunity may worry about continuing to go to work. This disclosure may require the employer to offer accommodation, says Pryor, which can include a leave of absence, the opportunity to work from home, or having the employee work apart from others in the workplace.
Although the ADA prohibits medical questions or examinations that can elicit information about a disability, COVID-19 has not been classified as a disability. Therefore, employers can ask employees about COVID-19 symptoms―fever, cough, shortness of breath―and can ask if the employee has been diagnosed. The employer can also ask if an employee has been in contact with anyone who’s been diagnosed but cannot ask if a family member has tested positive, says Pryor, as this information is protected by the Genetic Information Nondiscrimination Act.
Medical Testing and Privacy
Taking employee temperatures
Although taking employee temperatures is considered a medical exam, and thus prohibited under the ADA, the Equal Employment Opportunity Commission has ruled that employers may take employee temperatures to assess COVID-19, says Pryor. “My own preference is to ask the employee to not show up to work with a fever, and to encourage them to take their temperature before coming to work to make sure they don’t have a fever,” says Pryor, with the caveat that in some states, asking employees to do this prior to arriving at work does itself count as work, and may need to be paid.
As of March 31, the Equal Opportunity Employment Commission stated the following on its website regarding the taking of employee temperatures, for businesses covered by the ADA: “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. However, employers should be aware that some people with COVID-19 do not have a fever.”
Privacy and confidentiality
Private companies’ primary privacy obligations are covered under the ADA, and not HIPAA, which can be a misconception, says Stout-Tabackman. Employers cannot share information about individuals who have symptoms of COVID-19, or the results of their temperature scans. Employers can and should tell employees when another employee has tested positive, but cannot disclose the identity of the individual.
Even if the individual who self-identifies with COVID-19 allows the employer to identify them, it’s still best if the employee does it themselves, says Pryor. Should the employee tell their employer of a positive test, the employer then should ask who they have been in contact with at the company.
The Health Department
Although it may depend on state law, there’s generally no exception under the ADA to disclose employee health information, including if the employee has COVID-19, to the health department, says Stout-Tabackman. Companies can cooperate with the health department if they come to investigate a case or if they have questions about who might have come into contact with a diagnosed individual.