As everyone scrambles to live by and enact new rules, some of our old employment rules need to be revisited. If you are an employee who is asked or expected to continue working, the Americans with Disabilities Act continues to protect you. But the pandemic is introducing urgent concerns about group health. This led the Equal Employment Opportunity Commission to issue an update on COVID-19’s effect on health privacy.
The ADA protects employees from discrimination based on a disability, a perceived disability, or a history of having a disability. Special rules have always been in place for employees who pose a direct risk to themselves or others, however. If those employees cannot be reasonably accommodated, then the nondiscrimination aspects of the law no longer protect them. The COVID-19 pandemic qualifies —anyone with the virus poses an enormous risk to others of contagion.
To combat the risks posed by employees who are not obviously ill, employers may take more intrusive measures than usual. For example, the EEOC plainly states that employers are permitted to take employees’ temperatures and otherwise act for the good of the greater community if illness is suspected. Though this qualifies as a medical examination, it is permitted because of the crisis. Employees with COVID-19 symptoms may be sent home. Similarly, if an employee calls out sick, “ADA-covered employers may ask such employees if they are experiencing symptoms of the pandemic virus.“ The information needs to remain confidential, as does any medical information. A returning employee can be required to produce a doctor’s note.
Employees with a health condition that would be exacerbated by this virus can request telework as a reasonable accommodation. Even with our short history with this disease, no level of previously healthy condition appears to immunize anyone from serious consequences. Moreover, many people live with or are otherwise responsible for others who may have underlying health conditions. Therefore, employers should generously grant telework and other accommodations.