Now that the World Health Organization (“WHO”) has designated coronavirus (“COVID-19”) a pandemic, employers may wonder what, if anything has changed and how they can help prevent workplace exposure for their employees.
The WHO noted that the designation of COVID-19 as a pandemic does not change its assessment of the threat posed by the virus. Previously, we provided the EEOC’s 2009 guidance for employers on handling illnesses like the influenza pandemic, the seasonal flu, and H1N1. That guidance suggests certain actions employers may lawfully take when both the WHO and the CDC declare a pandemic. Even when a pandemic is declared, the extent to what an ADA-covered employer can do depends on the CDC and state or local health authorities’ assessment of the severity of the illness.
When employees call in sick or ask to go home during a pandemic, ADA-covered employers can ask such employees if they are experiencing the COVID-19 symptoms, such as fever, cough, or shortness of breath. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA. If COVID-19 is like seasonal flu or spring/summer 2009 H1N1, these inquiries are not disability-related. If COVID-19 becomes severe, the inquiries, even if disability-related, are justified by a reasonable belief based on objective evidence that the severe form of COVID-19 poses a direct threat. FULL ARTICLE