Encouraging employees to wash their hands is no longer enough!

As anticipated in our last alert, the World Health Organization (WHO) has now declared the COVID-19 virus a pandemic, changing the legal landscape for employers in terms of how they navigate the impact of the outbreak on their workforce. As such, we are circulating an updated FAQ with additional tips for US employers. As previously explained, these FAQs are based on experience with prior pandemics, and the ADA and EEOC guidance, which are the main “drivers” for managing employees. Of course, bear in mind that there are many other considerations that can come into play, such as OSHA and state equivalent health & safety laws, FMLA and state equivalent leave laws, HIPPA and state privacy laws, state and federal wage and hour laws, and the NLRA, all of which will need to be “ticked through” depending on the facts.

Q. Does the WHO’s declaration of a “global pandemic” mean that that US employers may rely on the “direct threat” ADA exception to conduct employee medical exams (e.g., temperature checks) and make disability-related inquiries (e.g., asking employees if they have a weakened immune system that might make them more susceptible to severe illness if exposed to COVID-19)?

A. Probably. A pandemic declaration describes the scope of the disease’s spread, but not the severity of the disease, so a pandemic declaration by itself is not enough. But given the CDC’s current assessment of the severity of COVID-19, the WHO’s pandemic declaration, and local public health agency proclamations about the disease, many U.S. employers should now be able to take steps to protect their workforces from COVID-19. The 2009 EEOC guidance outlines the relevant ADA standard:

Whether pandemic influenza rises to the level of a direct threat depends on the severity of the illness. If the CDC or state or local public health authorities determine that the illness is like seasonal influenza or the 2009 spring/summer H1N1 influenza, it would not pose a direct threat or justify disability-related inquiries and medical examinations. By contrast, if the CDC or state or local health authorities determine that pandemic influenza is significantly more severe, it could pose a direct threat. The assessment by the CDC or public health authorities would provide the objective evidence needed for a disability-related inquiry or medical examination. During a pandemic, employers should rely on the latest CDC and state or local public health assessments. While the EEOC recognizes that public health recommendations may change during a crisis and differ between states, employers are expected to make their best efforts to obtain public health advice that is contemporaneous and appropriate for their location, and to make reasonable assessments of conditions in their workplace based on this information.

It is now relatively clear that COVID-19 will be deemed severe in comparison to seasonal influenza or the 2009 H1N1 influenza. The CDC recently declared:

Outbreaks of novel virus infections among people are always of public health concern. The risk to the general public from these outbreaks depends on characteristics of the virus, including how well it spreads between people; the severity of resulting illness; and the medical or other measures available to control the impact of the virus (for example, vaccines or medications that can treat the illness). That this disease has caused severe illness, including illness resulting in death is concerning, especially since it has also shown sustained person-to-person spread in several places. These factors meet two of the criteria of a pandemic. As community spread is detected in more and more countries, the world moves closer toward meeting the third criteria, worldwide spread of the new virus. It is important to note that current circumstances suggest it is likely that this virus will cause a pandemic. This is a rapidly evolving situation and CDC’s risk assessment will be updated as needed.

The CDC also notes that there is no current treatment for COVID-19, that the International Health Regulations Emergency Committee of the World Health Organization declared the outbreak a “public health emergency of international concern” and that, on January 31, 2020, Health and Human Services Secretary Alex M. Azar II declared a public health emergency (PHE) for the United States to aid the nation’s healthcare community in responding to COVID-19. Many states have now declared local health emergencies, and cases of community spread are being commonly reported throughout the US. With close to 1,200 confirmed cases in 41 different states and the District of Columbia, US employers likely have the “objective evidence” necessary to justify disability-related inquiries or medical examinations.

Q: Can I send employees home if they display influenza-like symptoms during a pandemic?

A: Yes. The CDC and WHO have stated that employees who become ill with symptoms of influenza-like illness at work during the COVID-19 epidemic should leave the workplace. Advising such workers to go home is not a disability-related action if the illness is akin to seasonal influenza. You can also send an employee home if the illness is serious enough to pose a direct threat (as defined under the ADA) to the employee or others (see above for an analysis of the current “direct threat” level). But if your workforce is unionized, make sure you consider any CBA-related obligations, such as guaranteed workweek provisions or shift change notice requirements. It is also important to not overreact; train your supervisors on the symptoms to watch for and when to send an employee home.

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