As part of Spilman’s COVID-19 Task Force, we wanted to answer the pressing questions of many employers during this growing pandemic. Employers should consider implementing strategies and policy changes to reduce the risk of infection in the workplace while still complying with their obligations under the Americans with Disabilities Act. This is a developing topic, with many states imposing quarantines and Congress taking up the Families First Coronavirus Response Act. We at Spilman will stay on top of these developments.

In addition to good hygiene requirements that many employers already have implemented, the EEOC has provided guidance on what employers can do during an influenza-like pandemic.

Responses Employers Can Take to Respond to COVID-19 Issues that Comply with the EEOC’s Guidance Regarding Pandemics and the ADA

• Symptoms of COVID-19 typically include fever, cough, and shortness of breath.  Reported cases have ranged from mild symptoms to severe illness. Employers may send employees with these types of symptoms home.
  
  
• As a general rule, employers should not take employees’ temperatures to determine whether they have a fever. But, it is permitted if local health authorities or the CDC declare the virus widespread in your community.
  
  
• Employers may ask employees who report feeling ill at work or who call in sick if they are experiencing COVID-19 symptoms, including a fever, cough, or shortness of breath, and respond accordingly. Employers must maintain strict confidentiality over this information about an employee illness.
  
  
• If an employee is returning from travel, an employer may ask whether the employee is returning from countries that, according to the Centers for Disease Control and Prevention, have a Level 3 Travel Health Notice (currently China, Iran, South Korea, Italy, and a growing number of countries in Europe), even if the travel was personal. The CDC recommends individuals stay home for a period of 14 days after leaving an area that has a Level 3 Travel Health Notice, and employers may require those employees to adhere to this guidance.
  
  
• Employers may request that employees who have tested positive for COVID-19 notify their employer so the employer can inform fellow employees of their possible exposure. Employers should maintain confidentiality as required by the ADA.
  
  
• Employers may request that employees who have a family member at home with COVID-19 notify their employer so a risk assessment can be conducted.
  
  
• Treat requests from employees with disabilities that put them at high risk for complications of COVID-19 to work from home in order to reduce their chances of infection as you would any other request for a reasonable accommodation.
  
  
• Employers may ask an employee why he or she has been absent from work.  Employers are always entitled to know why an employee has not reported for work.
  
  
• Employers may require employees who have been away from the workplace during a pandemic to provide a doctor’s note certifying fitness to return to work, though the CDC and Department of Labor are advising against these types of requirements at this time because healthcare providers are overwhelmed and may not be able to timely provide such documentation. 

Reducing the Risk of Workplace Exposure to COVID-19 

Most employers have taken these steps already, but these infection prevention strategies should be implemented as soon as possible if they are not already in place:

• Promote frequent and thorough handwashing. If washing stations are not immediately available, provide alcohol-based hand rubs containing at least 60 percent alcohol.
  
  
• Encourage employees to stay home if they are sick.
  
  
• Encourage employees to cover their mouth and nose with a tissue to cough or sneeze or, if tissues are unavailable, to cough or sneeze into an upper sleeve.
  
  
• Provide customers and the public with tissues and trash receptacles.
  
  
• Discourage workers from using others’ phones, desks, offices, or other work tools and equipment, when possible.
  
  
• Routinely clean frequently touched workplace surfaces and provide disposable wipes for employees to wipe down commonly used surfaces before each use.
  
  
• Cancel or postpone in-person events with 50 or more attendees that were scheduled to be held within the next eight weeks, or arrange for these events to be held virtually.
  
  

Consider Appropriate Changes to Workplace Policy

Best practice responses to the pandemic will vary by industry, employer size, location, and other factors, but may include:

• Minimizing contact among employees, clients, and customers by replacing face-to-face meetings with virtual communications and implementing telework where feasible.
  
  
• Discontinuing nonessential travel.
  
  
• Developing emergency communication plans, including a method for responding to employees’ concerns.
  
  
• Training employees who need to use protective equipment or clothing regarding when to use it, how to put it on, use it, and take it off correctly.
  
  
• Updating sick leave policies in accordance with any changes to national, state, or local laws and ensuring employees are aware of these policies.
  
  
• Designating a local manager at each business location with the authority to take appropriate actions based on the condition in each locality.

As employers make changes in the workplace, they must continue to be aware of applicable anti-discrimination laws, paying particular attention to ensuring that employees are not treated differently on the basis of race, country of national origin, or disability (actual or perceived). If an employer anticipates it may close facilities for a period of approximately six months or more, it should be cognizant of its obligations under the Worker Adjustment and Retraining Notification Act.

Employers are also encouraged to consult guidance published by the CDC, Department of Labor, and EEOC as they prepare any pandemic response plan.