We are all aware of the on-going implications to employers as the Coronavirus, both confirmed cases and concerns from employers and employees alike, spreads rapidly across our region.  Cipriani & Werner, P.C. is prepared to help our clients address these issues and develop policies and strategies.   This article addresses what employers may and may not ask an employee regarding exposure.

The ADA prohibits employers from asking employees about their health and medical conditions.  However, the Pandemic Preparedness in the Workplace and the Americans with Disabilities Act Guidance issued by the United States Equal Employment Opportunity Commission (EEOC) provides that during a pandemic, exceptions to the ADA’s restrictions on employer health inquiries allow employers to inquire about an employee’s potential infection with the disease and related travel. 

The employer will not be asking about a current medical condition if the individual does not have a disease, according to the EEOC.  If the employee is infected, the ADA’s direct threat rule allows inquiries because an employee will impose a direct threat to co-workers and others in the workplace. 

The EEOC specifically addresses in its pandemic guidance to ask the employee to work from home as an infection control measure and advises it will not be a violation of the ADA.  It also specifically provides that asking employees about the illness or potential infection of a family member will not implicate the ADA.  However, employers should limit questions about family members to recent travel and ask employees about the potential exposure to the virus and not specifically about the condition of family members or risk violating the Genetic Information Non-Discrimination Act (GINA). 

In light of the foregoing and related guidance which has been provided over the last few days, employers may implement policies asking employees to report whether they or a family member have traveled to an impacted region.  For those employees identified as having potential exposure, an employer can, and in certain cases must, direct those employees to work from home or not work during the incubation period.  Employees who do not want to provide information about travel or potential exposures could also be asked to work from home or not work until it is determined it is safe for them to return to work.

Cipriani & Werner, P.C. is prepared to assist you through this period.  Our Employment Practice Group is ready to answer questions, navigate employment concerns, identify your category of risk and develop a specific strategy for address.  We emphasize a calm and considered approach. This is a time and opportunity for employers to take the lead in the development of a safe and productive workplace.  Additional articles pertaining to considerations for leave, basic precautions, flexible schedules and work from home opportunities are being developed and will be disbursed in the next few days.

If there is a particular concern or need for immediate review, please contact us at 1-888-488-2638 immediately.