March 13, 2020

UPDATED GUIDANCE: My Employees Could Have COVID-19. What Now?

Updated Guidance as of March 19, 2020.
You are concerned about potentially sick employees in the workplace. One employee is off work sick for a couple of days, and then wants to return to work. Another plans to return to work after a week of travel. Another appears to be sick at work. They are coughing, sneezing, and appear to be short of breath. You are concerned they may have COVID-19. What can you do? You’re not the only one concerned — your other employees are, too. 
Your public-facing employees want to wear masks to protect themselves. One employee tells you he doesn’t want to touch anything that others in the office have touched. What are your obligations to these employees?
Below, we address questions relating to keeping employees safe from COVID-19 in the workplace without violating the Americans with Disabilities Act (ADA) or employee privacy laws.
Can I require an employee returning from days away from work due to illness to report the symptoms the employee was experiencing that kept him/her out of work?
Short answer: yes, so long as the questions are limited to whether the employee has had flu-like symptoms. Though the ADA prohibits asking employees questions related to an employee disability, COVID-19 (like the seasonal flu) likely does not rise to the level of a disability, so asking an employee about flu-like (or COVID-19-like) symptoms is unlikely to elicit information related to a disability. The Equal Employment Opportunity Commission (EEOC) has taken the position that an employer may ask if an employee is experiencing flu-like symptoms if the employee reports being ill during a pandemic.
NOTE: Employers must be careful, however, to limit questions to whether employees are experiencing flu-like/COVID-19-like symptoms, as inquiries beyond that may become problematic. Complications from many illnesses, including flu-like illnesses, often do rise to the level of a disability, so questions designed to determine if any employee has a compromised immune system, or might be more likely to suffer complications of a particular illness, are not permissible.

UPDATED – Can I require employees to be tested for COVID-19?

Yes. As a general rule employers do not have the right to require an employee to undergo a particular medical examination. The ADA prohibits requiring medical examinations of employees unless the employer has a reasonable belief based on objective evidence obtained prior to the inquiry that (1) an employee’s ability to perform essential functions of the job will be impaired by a medical condition, or (2) an employee will pose a “direct threat” due to a medical condition. But on March 19, 2020, the EEOC published guidance, based on the CDC’s assessment of the spread and severity of COVID-19, stating that as of March 2020, the COVID-19 pandemic meets the “direct threat” standard. Accordingly, testing and reporting is currently justified under the second prong of the test.  Employers should continue to rely on the CDC’s assessment of COVID-19 for guidance, as that assessment (and the EEOC’s guidance on COVID-19) could change as the circumstances surrounding the virus change.

Even in the event the current guidance changes (such that testing would not be justified under the “direct threat” prong of the test), employers should absolutely ask that employees voluntarily report if they have tested positive for COVID-19. (In fact, employers have a general duty to maintain a workplace free of hazards under OSHA — and it may constitute negligence for an employer not to request that employees self-report illnesses.) 

UPDATED – Can I take an employee’s temperature at work to determine if there is a possibility that they have COVID-19?

Yes. Taking an employee’s temperature constitutes a medical examination — just like requiring a COVID-19 test, but is authorized by the EEOC for the COCID-19 pandemic. Accordingly, see the guidance above, which applies here as well.

UPDATED – Can I require an employee to leave work if he/she has symptoms I am concerned may indicate he/she has COVID-19?

Yes. The CDC specifically recommends that employees who exhibit influenza-like symptoms (or here, COVID-19-like symptoms) during a pandemic (such as this one) should not be at work. The EEOC has advised during past pandemics (such as H1N1) that requiring workers to go home due to exhibiting influenza-like symptoms does not implicate disability concerns. If your employee exhibits symptoms, you can require him/her to leave work and seek medical attention. Note that in certain states, if the employee has paid sick leave available, the employer must provide such leave and compensate the employee under applicable paid sick leave laws. 

Also, employees who become ill from a workplace exposure to COVID-19 (or other illnesses) may be eligible for workers’ compensation benefits. Accordingly, employers must take reasonable steps to mitigate the risk of such claims — and one method for doing that is to require sick employees to stay at home.

NOTE: Recognizing that some employees may be having difficulty accessing healthcare providers at this time, some recent “stay-at-home” or “shelter-in-place” orders issued by local governments prohibit employers from requiring their employees provide a note from their doctor in order either to justify going out on a medical leave, or to provide clearance to return to work.  Given the varying language in local orders and rapidly-changing circumstances, we recommend consulting legal counsel prior to requiring a health care provider note from an employee pertaining to COVID-19.  

What do I do if an employee has tested positive for COVID-19?

The employee should be sent home, or required to remain at home. The employer should determine, through direct discussions with the employee, who else the employee has come in contact with or worked in close proximity to (within a few feet) through or at work during the previous 14 days. Any such employees should also be sent home, on the basis that the employer has reasonable cause to believe the employee has come into contact with an employee who is infected with COVID-19. The infected employee must not be identified to others by name, in order to ensure the employer is not violating medical privacy laws.

UPDATED – Can I ask employees to tell me that they have been exposed to COVID-19? 

Yes, employers can, and probably should, make this request of employees. As noted above, employers have a general duty to maintain a workplace free of hazards under OSHA.

The ADA prohibits an employer from making disability-related inquiries of employees, except under limited circumstances. An inquiry is “disability-related” if it is likely to elicit information about a disability. Requiring employees to tell employers that they have been exposed to COVID-19 is not likely to elicit information about a “disability.” This is particularly true under current EEOC guidance, which provides that employers are permitted to require employees to be tested if they have a reasonable belief that the employee may have COVID-19. However, employers must ensure that they protect the confidentiality of any medical information they receive from or about an employee.

Can I ask employees to tell me where they are traveling? 

This also is not a disability-related inquiry under the ADA.  An employer may ask about employees’ travel to areas affected by a pandemic virus, even if the travel is personal.

However, employers should be mindful to avoid any action that could result in a claim of national origin discrimination. Employers should ensure that any travel-related inquiries or restrictions are based on legitimate business-driven reasons, and not the national origin of the employee.

If I know an employee has been exposed to COVID-19, or has traveled to an area affected by COVID-19, can I ask him/her to not come to work for 14 days? 

Yes. An employer that reasonably believes that an employee has traveled to a high-risk country or area and has been exposed to COVID-19, may ask that the employee not return to work for 14-days per CDC recommendations.

Instructing sick employees to leave the workplace due to exposure to COVID-19 is not a disability-related action. The action may also be justified if the risk of exposure is serious enough to present a “direct threat” to other employees.

Employers should also consider whether sick or exposed employees who are sent home need to be paid for days missed under Company policy, state or federal leave requirements, or any other basis.  

If I learn that an employee is ill or has been exposed to COVID-19, can/should I tell the employees’ co-workers? 

The CDC recommends that, if any employee is confirmed to be infected with COVID-19, employers should inform other employees of their possible exposure to COVID-19 in the workplace, but maintain confidentiality and medical privacy. Employers should not disclose to co-workers the identity of the ill or exposed employee.

Furthermore, medical and health-related information and records employers receive from or about an employee should be kept in a confidential medical file, separate from the employee’s personnel file. Access to the medical file should be restricted to the employer’s HR and leave administrators.

Confidential medical information may include an employee’s symptoms of COVID-19 and diagnosis with COVID-19. An employer can only disclose this confidential medical information to a limited group, including supervisors, safety and first-aid personnel, workers’ compensation carriers, and government officials. An employer cannot share this information with co-workers or customers, in a way that would identify the employee.

Because many privacy laws are a matter of state law, employers should also review applicable state privacy laws or state versions of federal laws prohibiting discrimination or disclosure on medical grounds. California employers also need to ensure that they do not violate California’s constitutional privacy protection and California’s Confidentiality of Medical Information Act. 

I have a public-facing employee who wants to wear a mask – do I have to let the employee wear a mask? 

There is no legal requirement that employers permit employees to wear a mask in most industries and workplaces. For most employees requesting to wear a mask, it is a matter of peace of mind. It is truly a business decision that must be made taking into account all relevant circumstances.

If employees are permitted to wear a mask, employers should also advise the employees that they must wear it consistently, and not just in the presence of certain employees or visitors. This may avoid any suggestion that the employees’ conduct is discriminatory against certain ethnic groups.

Do I need to provide masks to my employees?

There is no legal requirement that all employers must provide their employees with masks. Any requirements generally depend on circumstances such as the employer’s industry, the employee’s position, and the employee’s working conditions.

If the employer permits the wearing of masks, but chooses not to provide them, employers should provide an explanation of that decision, by explaining in writing that the government has not issued any instruction for employers outside specific industries to require the use of masks for prevention of coronavirus/COVID-19, and therefore, the company is not currently requiring or recommending that employees utilize masks with regard to COVID-19.

One potential exception to the general rule are employees who have a physical disability, mental disability, or medical condition. Under the ADA and state laws such as California’s Fair Employment and Housing Act (FEHA), employers must provide a reasonable accommodation for the known disabilities of employees and applicants, and engage in a timely, good faith interactive process in response to such requests.

In most cases, an employee’s general concerns about COVID-19 may not, by itself, be considered a disability. However, employers should consider other factors when they make this determination, such as an employee’s preexisting condition that may be exacerbated by the employer’s failure to provide masks. While in most cases the employer has the right to implement an alternative accommodation, the best practice in this situation may be to provide the requested masks; particularly since doing so would likely not present an undue hardship to the employer.

Do I have a duty under the Occupational Safety and Health Act with regard to COVID-19?

While there is no specific federal OSHA standard covering COVID-19 exposure, the General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health (OSH) Act of 1970, 29 USC 654(a)(1), may apply if an employer has not taken adequate steps to prevent the spread of this virus.

The General Duty Clause requires employers to provide employees with a workplace free from recognized hazards likely to cause death or serious physical harm. In the event of an inspection, the employer may be cited if (1) the employer failed to keep the workplace free of a hazard to which employees of that employer were exposed, (2) the hazard was recognized, (3) the hazard was causing or was likely to cause death or serious physical harm, and (4) there was a feasible and useful method to correct the hazard.

Therefore, it may prudent to take, as appropriate, those steps listed in the Checklist below.