Background
In March, the World Health Organization declared the coronavirus disease 2019 (“COVID-19”) an international pandemic. Around the world government officials ordered businesses and schools closed to prevent the spread of the virus. In May, many American governors allowed some businesses in their states to open their doors in a limited capacity despite people steadily becoming infected with the disease. Although some company owners have received the green light to get up and moving, they still need to develop a reopening plan to protect the health and safety of not only their clients and customers, but their employees too.
When drafting a strategy for starting business again, owners may want to consider consulting with the Center for Disease Control (“CDC”), state and local health officials, Occupational Safety and Health Administration (“OSHA”) and other authorities. Also, they may consider speaking with an employment attorney for a more thorough explanation on employers’ responsibilities in protecting the health and safety of their employees.
Americans with Disabilities Act of 1990
For the purpose of this article, I will focus on some of the requirements and standards of the Americans with Disabilities Act of 1990 (“ADA”) that employers may want to reflect on when drafting a return to work plan for their employees. Title I of the ADA forbids private employers with fifteen employees or more, also called covered employees, from discriminating against a qualified person with a disability in employment matters, such as, hiring, compensation, promotion, training and other undertakings. According to the ADA, a disability is described as a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of an impairment, or a person who is perceived by other people as having an impairment.
In most cases, the ADA prohibits covered employers from making disability related inquiries and requesting medical examinations of applicants and employees. When the CDC determines that there is an influenza pandemic in the United States, the Equal Employment Opportunity Commission (“EEOC”) finds that a person who poses a direct threat, which is a great risk of substantial injury to the health and safety of others that cannot be eradicated or diminished by reasonable accommodation, can be subjected to a covered employer’s disability related queries and medical testing. According to the EEOC, a person with COVID-19 or symptoms of it would cause a great risk of substantial harm to others if he were in the workplace at this time.
Strategic Plan
Based on the “direct threat” argument, employers can establish several effective policies and procedures without worrying about violating employment laws. First, they may ask if employees are experiencing coronavirus like symptoms. Second, business owners can take employees’ temperatures to check for fever. Third, employers can send workers home if they start exhibiting coronavirus like symptoms. Although these inquiries and examinations would normally violate the ADA, business owners can implement them as part of their strategic reopening plan to keep workers healthy and safe during the COVID-19 pandemic.
Please contact Attorney Tanille Royston if you need any assistance in developing a comprehensive reopening strategy.
