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Risk managers must undertake a fine balancing act in dealing with the coronavirus when it comes to the Americans with Disabilities Act, but are being aided by some leniency on the part of the U.S. Equal Employment Opportunity Commission, say experts.
While, for instance, they are free to check workers’ temperatures, they should shy away from asking any questions about family health history, which would violate the statute.
The EEOC has issued extensive guidance on the issue, which is based on the guidance it issued in 2009 in response to the H1N1 outbreak.
“It’s an interesting process, and it’s an evolving process, now, because, as the CDC and the governors are finding that there’s really hot spots everywhere around the country, it’s becoming easier and less of a violation, of the ADA” to ask people disability-related questions, said Paul E. Starkman, a member of law firm Clark Hill PLC in Chicago, who represents employers in his firm’s labor and employment practice group.
“In ordinary times, you can’t exclude someone from working because of concerns about a particular disease,” but that has changed with the pandemic, he said.
Gregory P. Abrams, a partner with Faegre Drinker Biddle & Reath LLP in Chicago who represents employers, said, “I think employers should recognize that this is really an unprecedented situation, so although the ADA should always be top of mind, employers should consider that the EEOC…is allowing employers to get out in front of this in a way employers may not have been able to before this became a pandemic.”
Greg Valenza, a principal with the Shaw Law Group P.C. in San Francisco, who represents employers, said, “Even the California Department of Fair Employment and Housing has taken the position that if someone is showing symptoms” of the virus “you can question them, and you can send them home, which is not something they would say for another type of illness or disability, so they have relaxed their normally very tough standards here.
“The employer has the right to protect its workforce, and the obligation to provide a safe workplace, and I guess if it conflicts with the ADA, there is a direct threat exception, which is to say that there’s no accommodation obligation if accommodation would pose a direct threat to the safety of the employee or others,” Mr. Valenza said.
“The question we were getting most was, ‘Can we take an employee’s temperature?’ and that’s settled,” you can, said Eric B. Meyer, a partner with FisherBroyles LLP in Philadelphia, who represents employers.
“I think where employers have to be most careful now is the medical information that they seek should be reasonable and tailored,” he said. They should not be asking for family medical history. “That has nothing to do with whether anyone has coronavirus or not,” he said.
Mr. Meyer also recommended that rather than ask workers if their spouses are sick, it is better to ask how they are feeling and if they have been exposed to the virus, or come into close contact with someone who is ill from it.
Mr. Meyer said, “The general advice I’m giving is, I’d rather have an ADA lawsuit than coronavirus in the workplace,” so it is preferable to err on the side of caution when it comes to sending someone home.
Employers still have to comply with the ADA to “the extent someone is disabled, and requests accommodations,” and if a request is made for accommodations, it must still be provided, said Alejandro Pérez, a partner with Jaburg Wilk in Phoenix, who defends companies.
Besides permitting employers to take workers’ temperatures, other provisions of the EEOC guidance, which was released March 19, include:
-Employers can ask employees who call in sick if they are experiencing symptoms of the virus but must maintain all information about employee illness as a confidential medical record.
-Employers can tell employees to stay home if they have coronavirus symptoms.
-They can require a doctor’s notes certifying their fitness for duty when they return to work, but because doctors and other health care professionals may be too busy, new approaches may be necessary, such as relying on local clinics to provide a form, a stamp, or email to certify the individual does not have the pandemic virus.
-Employers can screen job applicants for coronavirus symptoms after making a conditional job offer, as long as they do so for all entering employees in the same type of job. This rule applies regardless of whether the applicant has a disability.
-It is permitted to delay the start date of an applicant who has the virus or its symptoms.
-If an employer needs the applicant to start work immediately, it can withdraw a job offer to someone with the virus.
-While it is okay to take employees’ temperatures, the EEOC warns employers should be aware that some people with the virus do not have a fever.
More insurance and risk management news on the coronavirus crisis here.
The Risk & Insurance Management Society Inc. on Monday urged risk managers to support a congressional bill sponsored by Rep. Ken Calvert, R-Calif., that would reform the Americans with Disabilities Act for small businesses.