Employers are increasing looking at COVID-19 “Coronavirus” as a potential workplace health and safety issue. The CDC has published interim guidance for businesses and employer on dealing with the coronavirus disease. Unfortunately the CDC’s recommendations and many well meaning contingency plans by employers may violate employment laws.
The ADA prevents employer from disclosing employees’medical information
The Americans with Disabilities Act “ADA” contains a nondisclosure provision that prevents employers from disclosing information regarding an employee’s medical condition or history. An employer who violates this provision may be sued by the employee under the ADA. For example if a supervisor mentioned in a group meeting that an employee has Coronavirus, that may violate the ADA. There is one catch. The nondisclosure provisions of the ADA do not govern voluntary disclosures of medical information initiated by the employee. That means if the employee voluntarily discloses information about his/her medical condition, the employer may share that information with others at the company.
An employee’s voluntary disclosure of medical information does not trigger the confidentiality provisions of the ADA.
To make things complicated, when an employee fills out a FMLA leave request, does that mean there is voluntary disclosure of a medical condition and unprotected by the ADA? The answer is found in the specific facts and application of law. It’s best to ask an employment lawyer about the best practices for your company.
When and an employer ask questions about an employee’s medical condition?
Under the ADA, an employer may make inquiries into the ability of an employee to perform job-related functions. Employers should be familiar with the ADA, state laws, and similar local laws that restricts inquiring about an employee’s medical condition. Generally, employers are prohibited from inquiring about an employee’s disability or requiring medical examinations, unless: (1) the employer can demonstrate that the inquiry or examination is a business necessity and job-related or (2) the employer can show that it has a reasonable belief that the employee poses a “direct threat” to the health or safety of others that cannot be alternatively eliminated or reduced by other measures.
When is an employee medical information protected?
Once an employer asks an employee about his or her medical condition, the information and documents the employer receives about the employee’s medical condition or history obtained must be “maintained in separate medical files and treated as confidential records. Again the reason for the employer to ask about the employee’s medical condition must be an inquiry into the ability of an employee to perform job-related functions.
How must the employer protect the employee’s medical information?
may make inquiries into the ability of an employee to perform job-related functions” and that information regarding an employee’s medical condition or history obtained as a result of such an inquiry must be “maintained in separate medical files and treated as confidential records
Can you separate or treat an employee differently because you suspect the employee has the corona virus?
One of the CDS’s recommendation is to separate sick employees upon arrival from work. This practices poses several employment law problem. First, if you separate an employee because you think the worker is sick, you may violate the ADA under the provision that prohibits discrimination against employees what were perceived as disable. What if you are wrong? Should an employee be stigmatized and unfairly treated at work? Separating sick employees may violate the disclosure provision of the ADA.
Under the ADA and similar local laws, requires employers to provide reasonable accommodations for known limitations of applicants and employees with disabilities
Another CDC recommendation is that that employer encourage sick employees to stay at home. This practice may cause financial hardships on employees who do not have paid medical leave. It may be illegal for employers to require employees to go on unpaid medical leave.
Currently the CDC has not classified the Corona virus as a pandemic. In the event the CDC designates the outbreak as a pandemic, employers should consult an employment lawyer and the 2009 the Pandemic Preparedness Guidance, published by the Equal Employment Opportunity Commission (“EEOC”). The guidance which discusses what constitutes a “direct threat” under the ADA.