Updates in the Law
COVID-19 and the Americans with Disabilities Act (“ADA”)
The ADA still applies to U.S. employers during the COVID-19 pandemic. However, the ADA does not interfere with or prohibit employers from adhering to guidelines and suggestions issued by the CDC or state/local officials regarding how employers should be conducting themselves to lessen the societal impact of the virus. Importantly, these guidelines are likely to change and develop with the spread of the virus, so employers should stay current with information released by authorities regarding maintaining workplace safety.
Employers may ask non-disability-related questions about how employees are feeling. This includes allowing employers to ask employees if they are suffering from specific symptoms of COVID-19, which include: fever; chills; cough; shortness of breath; or sore throat. If employees are showing signs of COVID-19 infection, employers may request that they go home and recuperate. Similarly, if an employee recently traveled abroad, there is nothing in the ADA preventing employers from asking that employee about potential exposure to COVID-19.
However, The ADA still prohibits employers from compelling employees to disclose the existence of a disability, including asking asymptomatic employees to disclose whether they have a medical condition that makes them particularly susceptible to COVID-19 and its more life-threatening consequences. Additionally, if an employee voluntarily discloses the existence of a condition that makes them more susceptible to the effects of COVID-19, employers must keep that information confidential. Notably, because the CDC and local health authorities have identified the community spread of COVID-19 as a community health emergency, employers are allowed to measure an employee’s body temperature. While employers should remember that an employee may have COVID-19 and still not exhibit a fever, employers are allowed to conduct this examination under the current circumstances and react accordingly.
Moreover, according to recent EEOC guidance, employers may screen job applicants for symptoms of COVID-19, provided they are doing so for all similarly situated entering employees. They may also take an employee’s temperature post-offer and delay that new employee’s start date if they are exhibiting COVID-19 symptoms, or withdraw the offer outright if the employee is exhibiting those symptoms and the new position requires an immediate start.
Lastly, if an employer is concerned about the spread of COVID-19 in the workplace, that employer can encourage employees to telework as a means of controlling COVID-19’s workplace spread. Also, employees with a disability that places them at high risk for complications should they contract COVID-19 can request telework as a reasonable accommodation to reduce their chances of infection.
COVID-19 and the Family Medical Leave Act (“FMLA”)
Generally speaking, employees are not eligible to take FMLA leave because they are afraid of contracting COVID-19. However, if an employee has a pre-existing condition that places them at a higher risk for COVID-19 related complications, FMLA leave should be extended to that employee.
COVID-19 and the Fair Labor Standards Act (“FLSA”)
If an employer shuts down operations for an extended period because of COVID-19, the question of who to pay and how much becomes an issue. Hourly employees can continue to be paid only for the hours worked, regardless of whether an illness related shutdown is in effect or not. In contrast, salaried employees must be paid their regular rate unless: (1) the workplace is shut down for a week or more; and (2) that salaried employee did not perform any work during the extended period of closure. For example, if a salaried employee works on Monday and then the office is closed for the remainder of the week, that salaried employee must be paid their regular rate for the entire week. However, if the office remains closed the following week, and the employee does not perform any of their duties during that second week of the shutdown, then their employer need not pay them their regular rate for that second week.
If employees work from home as a means of addressing these fears, make sure that they are instructed clearly on how to record the time that they work and about the importance of accurately recorded working hours.
Should you have any questions about how COVID-19 may impact your workplace and employees, please do not hesitate to contact our office. In the meantime, the following link contains some additional useful information that the Center for Disease Control has released for employers: CDC Guidance for Employers