Frequently Asked Questions Regarding Medical Inquiries and Medical Examinations During COVID-19 Pandemic

03.27.2020

The following information is based on the Family Medical Leave Act (“FMLA”), the Fair Employment and Housing Act (“FEHA”), the California Occupational Safety and Health Laws (“Cal/OSHA”), as well as the U.S. Equal Employment Opportunity Commission’s (“EEOC”) Pandemic Preparedness in the Workplace and the Americans with Disabilities Act guidance, which was updated in response to COVID-19 Pandemic on March 21, 2020 (“COVID-19 Guidance”).  This document is designed to answer frequently asked questions that are particularly relevant to our public entity clients during the COVID-19 pandemic and thereafter.

As a preliminary matter and a factor in this analysis, the EEOC advised that the COVID-19 Pandemic meets the direct threat standard pertaining to the Americans with Disabilities Act (“ADA”) because “a significant risk of substantial harm would be posed by having someone with COVID-19, or symptoms of it, present in the workplace at the current time.”

Issues With Existing Employees During the COVID-19 Pandemic

1. May an employer send employees home if they display symptoms during the COVID-19 pandemic?

Yes, an employer can send home an employee with COVID-19 or symptoms associated with it.  Currently, the Center for Disease Control (“CDC”) has identified these symptoms to include fever, cough, difficulty breathing, as well as flu-like symptoms such as headaches, digestive issues, body aches, fatigue, runny nose, sore throat, and sneezing.

The FEHA is consistent with the EEOC’s Regulations.  Both the ADA and the FEHA provide for a threat to health or safety defense for employers.  This defense applies to individuals who cannot perform a position’s essential functions in a manner that would not endanger their health or safety, or the health and safety of others, even with reasonable accommodations.  Relevant factors in determining the merits of any health or safety defense include, but are not limited to:  duration of the risk, nature and severity of the potential harm, likelihood that potential harm will occur, and consideration of relevant information regarding the employee’s past work history.  “The analysis of these factors should be based on a reasonable medical judgment that relies on the most current medical knowledge and/or the best available objective evidence.”  (2 CCR § 11067(e).)  As noted above, the EEOC determined that the COVID-19 pandemic meets the direct threat standard because “a significant risk of substantial harm would be posed by having someone with COVID-19, or symptoms of it, present in the workplace at the current time.”

Moreover, under Cal/OSHA statutes, if an employee comes to work with a serious disease that the employer knows to be readily contagious, the employer should either send the employee home or have the employee work in an area where other employees will not be exposed.  The employer could conceivably face liability for willfully exposing the contagious employee to the others.  (See Health & Safety Code § 12029 – misdemeanor to willfully expose person with contagious, infectious or communicable disease to someone else.)

2. During the COVID-19 pandemic, how much information may an employer request from employees who report feeling ill at work or who call in sick?

Employers may ask employees who report feeling ill at work, or who call in sick, questions about their symptoms to determine if they have or may have COVID-19.  As noted, the CDC has identified these symptoms to include fever, cough, difficulty breathing, as well as flu-like symptoms such as headaches, digestive issues, body aches, fatigue, runny nose, sore throat, and sneezing.

Under the ADA and the FEHA, any disability-related inquiry must be “job-related and consistent with business necessity.”  (42 U.S.C. § 12112(d)(4)(A); 2 CCR §11071(d)(1).)  To constitute a “business necessity,” the employer must show that it had some reason for suspecting the employee would be unable to perform essential job functions or would pose a danger to the health and safety of the workplace, i.e., that the inquiry was “vital to its business.”  (Conroy v. New York State Dept. of Correctional Services (2nd Cir. 2003) 333 F.3d 88, 97.)  Assuming a “business necessity” is shown, “the employer must also show that the examination or inquiry is no broader or more intrusive than necessary.”  (Conroy, supra, 333 F.3d at 98.)  In other words, if an employer establishes a legitimate need to make a medical inquiry, the inquiry itself cannot probe into medical conditions unrelated to why the inquiry was permissibly sought in the first place.  (EEOC Notice No. 915.002, 7/27/00, “Enforcement Guidance on Disability-Related Inquiries and Medical Exams of Employees under the ADA.”)  Because COVID-19 questions are vital to both business necessity and health and safety, employers may ask questions narrowly-tailored to COVID-19.

3. During the COVID-19 pandemic, may an employer take its employees’ temperatures to determine whether they have a fever?

Yes, employers may measure employees’ body temperature.  Generally, measuring an employee’s body temperature is a medical examination. However, because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions as of March 2020, employers may measure employees' body temperature. As with all medical information, the fact that an employee had a fever or other symptoms would be subject to ADA and FEHA confidentiality requirements.  Moreover, employers should be aware that some people with COVID-19 do not have a fever.

Furthermore, the person administering the temperature check should be trained on the procedure.

To protect the individual who is taking the temperature, an employer must first conduct an evaluation of reasonably anticipated hazards and assess the risk to which the individual may be exposed.  The safest thing to do would be to assume the testers are going to potentially be exposed to someone who is infected who may cough or sneeze during their interaction.  Based on that anticipated exposure, an employer must then determine what mitigation efforts can be taken to protect the employee by eliminating or minimizing the hazard, including personal protective equipment (PPE).  Different types of devices can take temperature without exposure to bodily fluids.  Further, the tester could have a face shield in case someone sneezes or coughs.  Further information can be found at OSHA’s website, wherein guidance is provided for healthcare employees (which includes recommendations on gowns, gloves, approved N95 respirators, and eye/face protection).

4. When an employee returns from travel during the COVID-19 pandemic, must an employer wait until the employee develops symptoms to ask questions about exposure to the COVID-19 pandemic during the trip?

No, employers may follow the advice of the CDC and state/local public health authorities regarding information needed to permit an employee’s return to the workplace after visiting a specified location, whether for business or personal reasons.  When the CDC or state or local public health officials recommend that people who visit specified locations remain at home after traveling, an employer may ask an employee what locations they have traveled to, even if the travel was for personal reasons.

Moreover, according to guidance issued by the Department of Homeland Security, all U.S. citizens, legal permanent residents, and their immediate families, who returned from a restricted country must self-quarantine in their homes for 14 days after they arrive.

5. During the COVID-19 pandemic, may an employer require its employees to adopt infection-control practices, such as regular hand washing, at the workplace?

Yes.  Requiring infection control practices, such as regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal, does not implicate the ADA or FEHA.

6. During the COVID-19 pandemic, may an employer require its employees to wear personal protective equipment (e.g., face masks, gloves, or gowns) designed to reduce the transmission of the COVID-19 pandemic infection?

Yes.  An employer may require employees to wear personal protective equipment during the COVID-19 pandemic.  However, where an employee with a disability needs a related reasonable accommodation under the ADA/FEHA, the employer should provide these, absent undue hardship.  Additionally, given the current request to restrict the use of personal protective equipment to medical personnel and emergency responders, employers should carefully weigh the propriety of requiring the use of personal protective equipment.

7. During the COVID-19 pandemic, must an employer continue to provide reasonable accommodations for employees with known disabilities that are unrelated to the COVID-19 pandemic, barring undue hardship?

Yes.  The rapid spread of COVID-19 has disrupted normal work routines and may have resulted in unexpected or increased requests for reasonable accommodation.  Although employers and employees should address these requests as soon as possible, the current extraordinary circumstances may result in delay in discussing requests and in providing accommodation where warranted.  Employers and employees are encouraged to use interim solutions to enable employees to keep working as much as possible.

Hiring New Employees During the COVID-19 Pandemic

8. If an employer is hiring, may it screen applicants for symptoms of COVID-19?

Yes, as long as it does so for all entering employees in the same type of job.

9. May an employer take an applicant’s temperature as part of a post-offer, preemployment medical exam?

Yes.  Any medical exams are permitted after an employer has made a conditional offer of employment.  However, employers should be aware that some people with COVID-19 do not have a fever.

Furthermore, the person administering the temperature check should be trained on the procedure.

To protect the individual who is taking the temperature, an employer must first conduct an evaluation of reasonably anticipated hazards and assess the risk to which the individual may be exposed.  The safest thing to do would be to assume the testers are going to potentially be exposed to someone who is infected who may cough or sneeze during their interaction.  Based on that anticipated exposure, an employer must then determine what mitigation efforts can be taken to protect the employee by eliminating or minimizing the hazard, including personal protective equipment (PPE).  Different types of devices can take temperature without exposure to bodily fluids.  Further, the tester could have a face shield in case someone sneezes or coughs.  Further information can be found at OSHA’s website, examining the guidance it provides for healthcare employees (which includes recommendations on gowns, gloves, approved N95 respirators, and eye/face protection).

10. May an employer delay the start date of an applicant who has COVID-19 or symptoms associated with it?

Yes.  According to current CDC guidance, an individual who has COVID-19 or symptoms associated with it should not be in the workplace.  However, employers should continue to review and follow the most current information on maintaining workplace safety.

11. May an employer withdraw a job offer when it needs the applicant to start immediately but the individual has COVID-19 or symptoms of it?

Yes.  Based on current CDC guidance, this individual cannot safely enter the workplace; therefore, the employer may withdraw the job offer.

After the COVID-19 Pandemic

12. May an employer require employees who have been away from the workplace during the COVID-19 pandemic to provide a doctor’s note certifying that it is safe for them to return to the workplace?

Yes.  However, as a practical matter, doctors and other health care professionals may be too busy during and immediately after the COVID-19 pandemic to provide documentation that certifies that an employee may safely return to the workplace.

However, more restrictive local orders or directives may prohibit such documentation. Therefore, a specific review of any applicable orders or directives should be conducted.

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR presentation/publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process.

©2020 Atkinson, Andelson, Loya, Ruud & Romo

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