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GUIDANCE FOR EMPLOYERS AND EMPLOYEES AS PENNSYLVANIA WORKERS PREPARE TO RETURN TO WORK
As we are sure you are aware, Governor Wolf extended the closure of physical locations for all non-life sustaining businesses in Pennsylvania to May 8, 2020. While it is not certain what businesses will start to reopen as of that date, employers and employees have many questions regarding what screening an employer can do, or accommodations an employer must provide, as businesses begin to reopen. We address those frequently asked questions based upon the guidance provided by the EEOC, in conjunction with the Job Accommodation Network.
SCREENING QUESTIONS AND MEDICAL EXAMS
How much information may an employer request from an employee who calls in sick, in order to protect other employees from COVID-19?
During the pandemic, employers may ask employees if they are experiencing symptoms of the virus. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat. However, it is vital to note that employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA. This requires a separate medical file which is not part of the employee's personnel file.
When screening employees entering the workplace, may an employer only ask employees about certain COVID-19 symptoms?
As more data becomes available, new symptoms of the virus are discovered. Employers should rely on the CDC, other public health authorities, and reputable medical sources for guidance on symptoms associated with the disease. These sources may guide employers when choosing questions to ask employees to determine whether they would pose a threat to health of other employees. For example, additional symptoms beyond fever or cough may include loss of smell or taste as well as nausea, diarrhea, and vomiting.
Can an employer take the body temperature of employees during the COVID-19 pandemic?
Measuring an employee's body temperature is a medical examination. Because the CDC and state/local health authorities have acknowledged community spread of COVID-19, employers may take the employees' body temperature. The employer may maintain a log of the results, but the information must remain confidential as set forth above.
Can employers require employees to stay home if they have symptoms of the COVID-19?
Yes. The CDC advises that employees who become ill with symptoms of COVID-19 should leave the workplace, and the ADA does not interfere with employers following this advice. Also, if an employer learns that an employee has COVID-19, an employer may disclose the name of the employee to a public health agency.
When employees return to work, does the ADA allow employers to require a doctor's note certifying fitness for duty?
Yes. As a practical matter, however, doctors and other health care professionals may be too busy under the circumstances to provide formal fitness-for-duty documentation. Therefore, employers may ask medical providers to provide less formal documentation, such as a stamp or an e-mail to certify that an individual does not have the virus.
Must employers provide reasonable accommodations under the ADA in response to the coronavirus situation?
Yes. This issue may center around those who may be at higher risk of contracting the virus. When an employer receives a request for accommodation to reduce the risk of exposure to the coronavirus, an employer must consider this request under the ADA and engage in the interactive process to provide reasonable accommodations, barring undue hardship.
Who can receive reasonable accommodations under the ADA?
To be eligible to receive workplace reasonable accommodations under the ADA, an individual must have an “actual” or a “record of” a disability, as defined by the ADA. For example, the individual might have an underlying impairment and limitation that, if infected with coronavirus, would lead to serious complications. There is no comprehensive list of such impairments, but individuals with heart disease, diabetes, lung disease or asthma, a weakened immune system, kidney disease, cirrhosis, etc. are considered at higher risk for developing serious complications, according to the CDC. People 65 years and older and women who are pregnant are also at higher risk for developing complications from coronavirus, but will not qualify to receive accommodations under the ADA solely on the basis of age or ordinary pregnancy.
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 is defined as "action requiring significant difficulty or expense." Realistically, an accommodation that may not have posed an undue hardship prior to the pandemic may pose one now. Flexibility by employers and employees is important in determining if some accommodation is possible in the circumstances.
Obviously, you will have many questions as you begin to return to work at your physical employment locations and the above is not a comprehensive list of issues that may need to be addressed. If you have any questions or concerns, or want assistance in developing a plan or a list of screening questions, please reach out to us. We are truly grateful for your trust and confidence over the last 20 years. We all will get through this situation together. Rest assured that we are here to assist you in any way we can, as we share our best wishes for the health and safety of those close to you.
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