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ADA, FMLA, the Rehabilitation Act & COVID-19: Employer FAQs

 

 

COVID-19 continues to be a significant issue for all employers in all industries.

As the virus continues to spread, employers are facing very difficult labor and employment questions. Can employers ask employees to be tested? Can employers send sick employees home? And must these employees be paid? What if I need to close my worksite for a certain amount of time? We’re here to help you address these critical issues. 

In addition to the CDC guidelines regarding the COVID-19 pandemic, the following Q&A’s may be helpful:

 

As an employer, how much information may I request from an employee who calls in sick, in order to protect the rest of my workforce during the COVID-19 pandemic?

During a pandemic, ADA-covered employers may ask such employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information gathered about employee illness as a confidential medical record in compliance with the ADA.

 

Can I require employees to stay home if they have symptoms of COVID-19? 

Yes– The CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace. The ADA does not interfere with employers following this advice.

 

When employees return to work, can I require a doctors' note clarifying their fitness for duty? 

Yes– Such inquiries are permitted under the ADA either because they would not be disability-related or, if the pandemic influenza were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees. 

 

If I’m hiring, can I screen applicants for symptoms of COVID-19?

Yes– As an employer, you may screen job applicants for symptoms of COVID-19 after making a conditional job offer as long as you do so for all entering employees in the same type of job.  This ADA rule applies whether or not the applicant has a disability.  

 

As an employer, can I take an applicant's temperature as part of a post-offer, pre-employment medical exam?

Yes– Medical exams are permitted after an employer has made a conditional offer of employment. NOTE: Employers should be aware that some people with COVID-19 do not have a fever.

 

As an employer, can I delay the start date of an applicant who has COVID-19 or symptoms associated with it?

Yes– According to current CDC guidelines, an individual who has COVID-19 or symptoms associated with it should not be in the workplace

 

As an employer, can I withdraw a job offer if I need the applicant to start immediately but the individual has COVID-19 or symptoms of it?

Yes– Based on current CDC guidelines, this individual cannot safely enter the workplace, and therefore the employer may withdraw the job offer.

 

Can my employees refuse to report to work due to fear of contracting the coronavirus? 

Under the Occupational Safety and Health Act (OSHA), employees are only entitled to refuse to work if they believe they are in imminent danger. 

 

As an employer, should I require employees returning from travel to stay home for 14 days?

Yes– Employees returning from countries that have a Level 3 Travel Health Notice from the CDC should stay home for a 14 day period after returning to the US. 

 

Are absences due to the coronavirus covered by the Family and Medical Leave Act (FMLA)? 

While the coronavirus isn’t covered under FMLA, it is covered under the Family First Coronavirus Response Act amendment. 

 

Do I have to allow employees to work from home? 

No– While it isn’t required, telecommuting may be a practical measure to reduce exposure of the virus in some working environments.

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