The Small Business at Work Toolkit

Unprecedented impact

The coronavirus that causes COVID-19 is having an unprecedented impact on small businesses around the United States and around the world. Many have transitioned to take-out or delivery services, while others have been forced to close their doors.

No matter your current operating status, it’s important to understand how best to follow the guidance provided by the Centers for Disease Control (CDC) and other public health authorities and the US Equal Employment Opportunity Commission (EEOC) as it relates to COVID-19 and people with disabilities.

CDC guidance for businesses and employers

The CDC offers some excellent guidance for businesses and employers for keeping their workforce safe. They recommend that employers work to reduce transmission among employees, maintain healthy business operations, and maintain a healthy work environment. The CDC updates their guidance as conditions evolve. You should follow the latest guidance to make sure your workplace safe!

Many of the rules don’t change

The EEOC continues to enforce all the non-discrimination laws during the pandemic. This means that the Americans with Disabilities Act (ADA) and other non-discrimination laws are still in effect. However, because (according to current CDC guidance) the virus represents a direct threat, or a significant risk of substantial harm to the health or safety of self or others, some of the rules change a bit.

What’s changed?

The ADA regulates when and how employers may make disability-related inquiries and conduct medical exams. It’s important to highlight where employers can make inquiries related to the pandemic. We recommend that you review the EEOC guidance on COVID-19.

Is COVID-19 a disability under the ADA? There is not enough information right now to be able to answer this question. Some people may experience a mild-to-moderate illness. Others, like those placed on a ventilator, may experience a more lasting impact that will rise to the level of disability. As always with the ADA, the presence of a disability will be evaluated on a case-by-case basis.

May an employer take its employees’ temperatures during the pandemic? Yes! Based on current guidance, employers may measure body temperature and ask about the presence of the symptoms of COVID-19 if their employees are physically present in the workplace. If someone is telecommuting, they are already isolated, so there is no need to track symptoms. Checking for fevers is not a foolproof method to track potential exposure as not everyone who has COVID-19 has a fever. People who don’t have any symptoms can still transmit the virus.

Things to remember:

• You have to monitor your employees equally. You can’t single out one employee to monitor their temperature without a reasonable belief based on facts (i.e. the presence of a hacking cough). If you are taking temperatures, do it for all employees who are present in the workplace.
• All medical information, including COVID-19 symptoms, must be kept confidential.

Can I require employees with symptoms of COVID-19 to leave work or to stay home? Yes! Guidance from the CDC says that employees with symptoms of COVID-19 should leave the workplace. Nothing in the ADA would interfere with an employer’s right to maintain a safe workplace. Make sure your decisions about who should stay home are based on observable facts, and not on assumptions of risk based on disability or other protected status.

How can I tell other employees that they may have been exposed? Employers can tell co-workers and customers that someone in the workplace has been diagnosed with COVID-19. The level of specificity you use should depends on the size of your business. You might say, someone who works in a particular department, if you have multiple departments. If you have very few staff, you can just say one of our employees has been diagnosed with COVID-19. The idea here is to keep the person’s identity confidential. A person’s identity should be shared only on a need-to-know basis (i.e. with public health officials for tracking contacts).

According to the EEOC, “Employers should make every effort to limit the number of people who get to know the name of the employee. Certainly a designated representative of the employer may interview the employee to get a list of people with whom the employee possibly had contact with in the workplace, so the employer can take action to notify those who may have come in contact. This does not require disclosing the employee’s name. Those who are told the employee’s name should be specifically instructed to keep the information confidential.”^[1]

What if someone demonstrating symptoms of COVID-19 won’t allow you to take their temperature or answer questions about symptoms? Under current guidance, if an employee refuses to answer questions about COVID-19 symptoms, an employer can bar the employee from physical presence in the workplace. Remember though, that your employees may be reluctant to talk about COVID-19 symptoms for a number of reasons. Before you send them home, ask them why they are reluctant to share, reassure them that their answers are private, and remind them that you are asking for the safety of coworkers and the general public that your small business serves.

Can I ask an employee if they have an underlying condition that would make them more vulnerable to COVID-19? No. Unless someone is displaying symptoms of COVID-19, this question is a disability inquiry that is not allowed by the ADA.

What if an employee doesn’t come to work and the absence hasn’t been excused? Employers can always ask employees why they didn’t report to work. This isn’t a disability-related inquiry. Just make sure you keep the question neutral. State the problem… “you didn’t come to work,” and ask why and when the employee will return to work. Don’t assume or suggest the absence is because of a disability issue.

 Do I have to provide reasonable accommodations to my employees who require them? The obligation that employers have to provide reasonable accommodations for their employees continues during a pandemic, such as the COVID-19 pandemic. Some accommodations might include:

• Teleworking to minimize risk of exposure
• Ergonomic accommodations to make working from home possible
• Duplicate software or access to a VPN to enable software at home

JAN offers some Situations and Solutions that provide great examples of accommodations.

References

[1] US Equal Employment Opportunity Commission. (2020). Transcript of March 27, 2020, outreach webinar.