What Are the Employer’s Rights and Responsibilities During a Pandemic?

The U.S. Equal Employment Opportunity Commission (EEOC) created a guide in 2009 in response to the H1N1 flu pandemic. Recently, on March 20th, 2020, the EEOC addressed the COVID-19 Pandemic. The EEOC laws were updated in response to the March 11th, 2020, declaration of a pandemic from the World Health Organization (WHO).

CDC Guidelines Do Not Affect EEOC Laws

During a pandemic, there are many questions from employers and employees. There are even more questions when it comes to the Americans with Disabilities (ADA) guidelines such as, “Which guidelines do we still need to follow?” and “Do we still need to provide accommodations?”  It is essential to note that the CDC guidelines and protocols do not interfere with federal laws related to persons with a disability; the ADA and the Rehabilitation Act do. 

Emergency Planning

A Pandemic Emergency Response may already exist at your workplace. If an emergency plan doesn’t exist, one should be created. An emergency plan can help organizations identify and meet the needs of their employees. These plans should include the needs of those with a disability. Identifying people’s needs can help employers make appropriate accommodations to cover all EEOC laws.

In preparedness planning, it is crucial to identify the needs of all employees and avoid excluding those with disabilities.

Questions to ask your employees

These questions can give employers an idea of what should be considered in a pandemic plan while protecting the rights of the employees. Make sure to follow federal laws per the EEOC. Please note, the items must be ambiguous and only require a yes or no answer. 

1. If public transportation were not available or sporadic, would you be able to travel to and from work?
2. Do you or a member of your household fall into one of the categories identified by the CDC as being high risk for severe complications due to a pandemic illness, where you would be advised not to come to work?
3. Are you the primary caregiver for a child or person who could not care for themselves if a pandemic caused daycare, schools, and other community care services to close?

Questions and Actions Permitted During the COVID-19 Pandemic

• Scenario 1: During COVID-19, public transit is unreliable in many parts of the United States. Three employees utilize the public transit system to get to and from work. Two of the three have a noted disability in their file; one of the two has a disability that prevents them from driving. Do you need to provide accommodations for all employees equally?

• • Ex 1:  The person without a disability who relies on public transportation.
    • It would be up to that individual to find a way to get to work and meet the expectations of their job.
  • Ex 2:  A person who has a disability that doesn’t limit their ability to drive.
    • Businesses are not required to make an accommodation that is not directly related to a disability.
  • Ex 3:  A person has a disability that limits or prevents them from driving
    • The employer needs to find a reasonable way to accommodate the employee. Reasonable accommodations could be providing transportation to and from the workplace, adjusting the employee’s hours to meet the transportation schedule, or permit the employee to work from home with reasonable accommodations.

• Scenario 2: The CDC determines that certain people have a higher risk factor for developing COVID-19. You are aware that a few employees have an autoimmune-related disability. You suspect they are at a higher risk for catching and spreading COVID-19. How can you assess these individuals?
  • You can ask all employees to self-report symptoms related to COVID-19, cold, flu, fever, nausea, and similar issues. However, you cannot ask questions that might reveal a disability or use the risk-factor as a determining factor for permitting the person to work.

Screening Employees, Quarantine, and More

Can you require an employee to submit to a daily temperature screening or other health screening?

Yes. And per the CDC, all persons with a fever, cold, or flu-like symptoms should not report to a workplace and should self-quarantine. However, the results of the screening must be kept confidential and stored in a separate medical file. The same standard must apply for all employees and the screening cannot be related to a person’s disability.

Can you ask a person who has been absent from work due to symptoms of COVID-19 for a note from the doctor to return to work?

Yes, you can ask all employees who have been absent due to signs of COVID-19 for a letter from a doctor stating they are not a health risk to others. Again, this policy must be the same for all employees.

Can you require employees to self-quarantine if they visited one of the epicenters for the COVID-19 outbreak?

Absolutely, provided you follow the CDC recommendations and guidelines, and the policy is the same for everyone.

Employer’s Responsibility to Employees with a Medical Disability

• Scenario:  An employee with an eligible disability and associated risk-factor asks for permission to work from home for fear of contracting COVID-19. However, the nature of the employee’s position makes it impossible to perform the duties from home. What should the employer do?
  • First, the health and wellbeing of the employee need to be at the forefront of the employer’s mind. Exploring ways for the employee to self-isolate in the workplace is a good place to start, especially since all organizations should be following the CDC guidance on distancing between employees.
  • If a workplace solution isn’t viable, perhaps there is a different job that would permit telecommuting. In times of uncertainty, employers can reach out to the EEOC or The Job Accommodation Network (JAN) for guidance in employee placement.

We are in uncharted waters. The critical thing to remember is to have a plan in place that covers all of your employees equally. The information and resources provided are a brief overview of the EEOC’s ADA guidelines and is not a replacement for legal advice.