As the novel coronavirus continues to spread, many employers will encounter a situation in which one of their own employees contracts COVID-19. Employers will undoubtedly have numerous questions on how to properly handle the situation to protect the health of their employees and shield their business from liability.
The Equal Employment Opportunity Commission (EEOC) and the Department of Labor (DOL) have recently issued some helpful guidance to address many of these concerns. Here are some answers to the most common questions related to having an ill employee.
What do I do if an employee has a fever or other symptoms of COVID-19?
The primary legal benchmark with which employers should be familiar is the Americans with Disabilities Act (ADA). The ADA regulates employers’ disability-related inquiries and medical examinations, prohibits the exclusion of individuals with disabilities in the workplace unless there is a direct threat, and requires reasonable accommodations for individuals with disabilities.
Based on current CDC guidance, COVID-19 meets the standard of a “direct threat.” Thus, employers may exclude individuals who have COVID-19 from the workplace, including employees that an employer suspects of having COVID-19 based on presenting symptoms. That means that if an employee has a fever or otherwise displays symptoms during a wellness check, or at any point during the workday, you may send the employee home.
What questions can I ask employees regarding their health?
Employers are generally barred from inquiring into their employees’ health conditions. However, employers are permitted to ask certain questions related to COVID-19 because it has been identified as a “direct threat.” Only information that is necessary for the purposes of maintaining the safety of personnel and developing contingency plans should be gathered. Moreover, it is a best practice to obtain such information through a yes or no answer so as to prevent an employee from disclosing more information than is necessary. For instance, employers may ask employees to answer the following questions with a yes or no:
- Are you age 65 or older?
- Do you have any of the following health conditions?
- moderate to severe asthma
- serious heart conditions
- immunocompromised from cancer treatments, smoking, bone or organ transplants, or other immune deficiencies
- severe obesity (body mass index of 40 or higher)
- diabetes chronic kidney disease undergoing dialysis
- liver disease
Employers should have a legitimate purpose behind seeking such information, most important of which is a plan to address accommodations for high-risk employees. Such a plan can include placing high-risk individuals in positions or areas where they will come into less contact with the public, or accommodate their illness with work-from-home options.
What can I ask an employee who calls in sick?
Employers may ask employees who call in sick if they have COVID-19 symptoms and/or have tested positive for the disease.
What information can I disclose to my employees?
Employers may disclose to other employees that a member of the company has a confirmed diagnosis of COVID-19 or is presenting symptoms. However, care should be taken that the employee’s name not be released nor any identifying information (e.g., department, position, gender, etc.).
Employees who came into close contact with an ill individual may be notified that they can seek guidance from their personal physicians and may wish to get tested. If your business (and the employees) are deemed “essential” by the federal government, such employees may continue working, but you should ask them to monitor for symptoms and immediately report if they become ill. If your business is not “essential,” however, these employees should be asked to self-quarantine. Depending on your state, such employees may be eligible to receive unemployment compensation for the time they are on leave.
Can I require a doctor’s note before I let an employee return to work?
Employers may ask employees to obtain a doctor’s note before allowing them back to work, if possible. Keep in mind, however, that many physicians are experiencing high patient volumes and are unable to efficiently provide such documentation. Accordingly, the CDC has issued guidance stating that infected employees may return to work 3 days after their fever and symptoms subside (without the use of medications), or 10 days after a positive COVID-19 test. Asymptomatic employees who test positive may also return 10 days after a positive COVID-19 test.
The laws and guidance related to COVID-19 are changing rapidly. The statements contained herein are not intended to provide legal advice, but rather to represent our best interpretation of current guidance. As always, if you need help, seek out a competent employment and business attorney.