Now that North Carolina’s stay-at-home order has been lifted, many people are going back to their jobs or have already been back at work for a while. You may have questions about how the pandemic may change the workplace and how this impacts your legal rights.
In the Q&A below, I’m addressing some of the most common questions people have about working in the COVID-19 era and discussing recent changes to employment law. If you have other questions about workers’ compensation, Social Security disability, auto accidents and personal injury, veterans disability, labor and employment issues, please contact us at the Deuterman Law Group. We are here to help you.
How much information may your employer request from you if you call in sick?
Any employer with 15 or more employees is covered by the Americans with Disabilities Act (ADA) and would not normally be able to ask such personal questions when you call in sick. However, to protect the rest of its workforce during the COVID-19 pandemic, an employer may ask employees if they are experiencing symptoms of the virus. For example, your employer can ask if your symptoms include fever, chills, shortness of breath, sore throat, loss of smell or taste, as well as gastrointestinal problems, such as nausea, diarrhea, and vomiting.
Can your employer take your body temperature before allowing you to enter the workplace?
Yes, although this would normally be considered a medical examination that might not be allowed under the ADA, because the CDC and state and local health authorities have acknowledged community spread of COVID-19, employers may measure employees’ body temperature during the pandemic.
Can your employer administer a COVID-19 test before allowing you to enter the workplace?
Yes, the ADA requires that any mandatory test of employees be “job-related and consistent with business necessity.” Applying this standard to the current circumstances, companies may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others.
However, as with any questions or testing we have discussed, an employer must ask the questions or perform the tests on all employees. In other words, an employer could not choose to ask questions or perform tests to only men or African Americans. Doing so would violate Title VII of the Civil Rights Act of 1964.
Can employers require employees to stay home if they think they have symptoms of COVID-19?
Yes. The CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace.
When employees return to work, can your employer require a doctor’s note certifying fitness for duty?
Yes. As a practical matter, doctors and other healthcare professionals may be too busy during and immediately after a pandemic outbreak to provide this type of documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an email to certify that an individual does not have the virus.
What happens if I get sick with COVID-19 or I am experiencing symptoms of COVID-19?
If you are a full-time employee and get COVID-19 or are experiencing symptoms of COVID-19 and seek a medical diagnosis, and your employer has less than 500 employees, you are entitled to 80 hours of paid sick time under the Emergency Paid Sick Leave Act (EPSLA), which is part of the new Families First Coronavirus Response Act.
If you are a part-time employee, you are entitled to a number of hours equal to the number of hours that you work, on average, over a two-week period.
What happens if my employer refuses to pay me the 80 hours of paid sick time or fires or disciplines me for taking the two-week leave?
If an employer discharges, disciplines, or in any manner discriminates against an employee for taking leave under the EPSLA, or refuses to pay for the two-week leave, you would be able to enforce the law by filing a lawsuit against them.
If an employer is hiring new employees, may it screen applicants for symptoms of COVID-19?
Yes, an employer may screen job applicants for symptoms of COVID-19, but only after making a conditional job offer. However, as with other questions or medical tests, the employer must screen all job applicants and cannot discriminate on the basis of such factors as gender, race or national origin.
May an employer take an applicant’s temperature as part of a post-offer, pre-employment medical exam?
Yes, as long as it does so for all new employees.
May an employer delay the start date of an applicant who has COVID-19 or symptoms associated with it?
Yes, an individual who has COVID-19 or related symptoms should not be in the workplace as that would pose a direct threat to the health of others.
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, an individual who has COVID-19 or symptoms associated with it should not be in the workplace. Therefore, if the employer truly needs an applicant to start immediately, it can withdraw the job offer.
May an employer postpone the start date or withdraw a job offer because the individual is over 65 years old or pregnant, both of which place them at higher risk for COVID-19?
No. The fact that the CDC has identified those who are 65 or older, or pregnant women, as being at greater risk does not justify unilaterally postponing the start date or withdrawing a job offer. However, an employer may choose to allow telework or discuss with these individuals if they would like to postpone the start date.
If a job can only be performed at the workplace, are there reasonable accommodations employers can make for individuals whose pre-existing disabilities put them at a higher risk from COVID-19?
Under the ADA, an employer must provide a reasonable accommodation for someone with a disability unless that would impose an undue hardship on the employer. There may be reasonable accommodations that could offer protection and limit exposure for workers whose disabilities put them at greater risk from COVID-19. Even with the constraints imposed by a pandemic, some accommodations may meet an employee’s needs on a temporary basis without causing undue hardship on the employer.
Such accommodations may include additional or enhanced protective gowns, masks, gloves, or other gear beyond what the employer may generally provide to employees. Accommodations also may include additional or enhanced protective measures. For example: erecting a barrier that provides separation between an employee with a disability and coworkers or the public or increasing the space between an employee with a disability and others.
Another possible reasonable accommodation may be elimination or substitution of particular “marginal” functions (less critical or incidental job duties as distinguished from the “essential” functions of a particular position).
In addition, accommodations may include temporary modification of work schedules (if that decreases contact with coworkers and the public when on duty or commuting) or moving the location of where a person performs their work. (For example, a manufacturer could move a person to the end of a production line rather than in the middle to allow for more social distancing.)
How do people who have medical conditions that the CDC says may put them at higher risk for severe illness from COVID-19 request reasonable accommodations from their employers?
An employee — or third party, such as a physician — must let the employer know that she or he needs a change for a reason related to an underlying medical condition.
Individuals may request accommodation in conversation or in writing. While it’s not necessary to use the term the “reasonable accommodation” or reference the ADA, doing so is a good idea.
The employee or her representative should communicate that she or he has a medical condition that necessitates a change to meet a medical need. After receiving a request, the employer may ask questions or seek medical documentation to help decide if the individual has a disability and if there is a reasonable accommodation, barring undue hardship, that can be provided.
Are the circumstances of the pandemic relevant to whether a requested accommodation can be denied because it poses an undue hardship?
Yes. An employer does not have to provide a particular reasonable accommodation if it poses an “undue hardship,” which means “significant difficulty or expense.” In some instances, an accommodation that would not have posed an undue hardship prior to the pandemic may pose one now.
What if an employee is already receiving a reasonable accommodation prior to the COVID-19 pandemic and now requests an additional or altered accommodation?
An employee who is already receiving a reasonable accommodation prior to the COVID-19 pandemic may be entitled to an additional or altered accommodation, absent undue hardship.
During the pandemic, if an employee requests an accommodation for a medical condition, whether it pertains to COVID-19 or not, may an employer still request information to determine if the condition is a disability?
Yes, if not obvious or already known, an employer may ask questions or request medical documentation to determine whether the employee has a “disability” as defined by the ADA.