With many people out of work and others working remotely, the landscape of the workplace has changed, for better or worse. Some states and businesses are looking at reopening and bringing employees back to their normal job site, but this has raised questions with employees who are concerned about the risk of being exposed to the corona virus. Here’s a sampling of some guidelines from the Equal Employment Opportunity Commission (EEOC) that might help answer some questions about how safely returning to work, as it intersects with the Americans with Disabilities Act (ADA):
Can my employer send me home if I have COVID-19 symptoms?
Yes. This is permitted under the ADA if the illness is serious enough to pose a direct threat.
Can my employer identify which employees are more likely to be unavailable for work in the event of a pandemic?
Yes, as long as the employer’s inquiry is not disability-related. An inquiry is not disability-related if it is designed to identify non-medical reasons for an employee’s absence during a pandemic (e.g., lack of child care or reduced public transportation). The inquiry should be phrased as a “yes” or “no” question.
Can my company require new employees to have medical exams?
Yes, as long as all entering employees in the same job category are required to undergo a medical examination. The medical information must be treated as a confidential medical record.
May my employer rescind a job offer based on the results of a post-offer medical examination if the exam reveals I am at increased risk of complications from COVID-19?
No, unless the applicant would pose a direct threat within the meaning of the ADA. A finding of “direct threat” must be based on reasonable medical judgment that relies on the most current medical knowledge and/or the best available evidence.
Can my employer take my temperature before I return to work?
Yes, as COVID-19 has been declared an epidemic and due to current CDC guidance. However, the fact that an employee has a fever must be subject to ADA confidentiality requirements.
During a pandemic, can my employer ask why I’ve been absent from work?
Yes. Asking why an employee did not report to work is not a disability-related inquiry.
Can my employer require a doctor’s note certifying I am fit to return to work after an absence from the workplace?
Yes.
Can my employer send me home even if I don’t have any symptoms?
Yes, the employer may send an asymptomatic employee home or require the employee to work from home if the employee has been in close contact with someone who has COVID-19.
Can my employer require me to come to work, go to crowded events or travel despite COVID-19 concerns?
Employers should follow applicable federal and state guidelines regarding travel and social distancing. If an employee does not feel comfortable performing a task due to health concerns, employers are urged to allow liberal use of earned sick time, vacation time, or paid time off during a public health emergency.
If you have other questions, please reach out to (617) 333-8278 or e-mail info@petkovlaw.com.