Good News from the government about Families First Coronavirus Response Act - Robin Shea - Constangy, Brooks, Smith & Prophete, LLP - Winston-Salem Office

By Robin Shea

By Ron Sarian

Constangy, Brooks, Smith & Prophete, LLP
Los Angeles Office

Amid the general panic and confusion caused by the coronavirus pandemic, employers are faced with the question of testing their employees for COVID-19. After all, an infected employee may present a hazard not only to himself or herself, but also to co-workers and even customers. So, what is an employer to do?

The first thing to keep in mind is that all existing laws continue to apply. These include Title VII, the Americans with Disabilities Act, the Fair Labor Standards Act, the Family and Medical Leave Act (now amended), the Health Insurance Portability and Accountability Act, the Genetic Information Nondiscrimination Act, and other federal, state, and local workplace laws. The general duty clause in the Occupational Safety and Health Act provides that “an employer shall furnish to his employees employment and place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees . . . .” This alone might allow an employer to question, and possibly test in some manner, an employee for a contagious virus based on a reasonable suspicion.

The ADA generally considers the taking of an employee’s temperature to be a “medical examination,” which it defines as any “procedure or test that seeks information about an individual’s physical or mental impairments or health.” With current employees, medical examinations are prohibited by the ADA unless the examinations are “job-related and consistent with business necessity,” or if other very narrow exceptions apply. Generally, medical examinations of current employees are allowed if 1) the employee’s actual or suspected medical condition may be impairing the employee’s ability to perform his or her “essential job functions,” or 2) the employer has a reasonable belief that the employee poses a “direct threat” to his or her own health or safety, or that of others, that cannot be eliminated or reduced by reasonable accommodation. The second factor “must be based on objective evidence obtained, or reasonably available to the employer.” The Centers for Disease Control and Prevention, or other governmental health agencies, can provide the objective basis needed.

In 2009, the Equal Employment Opportunity Commission issued guidance in connection with the H1N1 influenza that it reaffirmed last week. In its “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act,” the EEOC took the position that, during a pandemic, employers could rely on the latest CDC and state or local public health assessments to objectively determine whether the pandemic rises to the level of a “direct threat” to the safety of the individual or others. Although assessments might vary depending on geography or other factors, generally if an employer relies on an official assessment to make the determination that a direct threat exists, it may go ahead and test its employees.

Late afternoon on March 19, the EEOC went further than merely reaffirming what it said in 2009. The agency now specifically states as follows:
Based on guidance of the CDC and public health authorities as of March 2020, the COVID-19 pandemic meets the direct threat standard. The CDC and public health authorities have acknowledged community spread of COVID-19 in the United States and have issued precautions to slow the spread, such as significant restrictions on public gatherings . . . . At such time as the CDC and state/local public health authorities revise their assessment of the spread and severity of COVID-19, that could affect whether a direct threat still exists.

In light of this finding, the EEOC confirms that “employers may ask employees who report feeling ill at work, or who call in sick, questions about their symptoms to determine if they have or may have COVID-19” and “may measure employees’ body temperature.”
Of course, the “direct threat” finding applies only to COVID-19 and is temporary.

Employers choosing to take their employees’ temperatures should make clear that the temperature test is being used solely to determine whether the employee may have a symptom of COVID-19, as opposed to determining whether the employee has some other medical impairment or disability. In addition, employers opting to temperature test should use infrared digital thermometers rather than oral thermometers, which are more invasive. Employers should exercise caution because an employee can have a fever for many reasons other than COVID-19. Conversely, an infected employee may be asymptomatic and not exhibit a fever at all but still be contagious. Thus, temperature testing should be followed up by relevant medical questioning. Although the EEOC’s current guidance allows employers to do this, the better practice would be to refer the employee to a health care provider for follow-up.

Employers should avoid taking actions that could make them liable for disability discrimination. This would include terminating or taking other adverse action against employees who have or have been exposed to corona-virus, or who simply have fevers. Instead, the employee should be sent home or to a health care provider for further evaluation, with paid leave if applicable, and allowed to return to work after recovery.
If the temperature test or other screening results in the disclosure of other personal medical information -- for example, immunodeficiency -- it would violate the ADA for the employer to take action against the employee based on that information. Under the ADA, employers are liable not only for discrimination against individuals who actually have disabilities, but also for discrimination against individuals who are “regarded as” having disabilities, even if they are not actually disabled. In addition, the employer must comply with applicable state or local laws prohibiting disability discrimination.
It also violates the ADA for an employer to disclose an employee’s personal medical information to anyone who does not have a legitimate, job-related reason to know.
If the employer’s corona-virus screening somehow results in disclosure that an employee is pregnant, discriminating against the employee would violate the Pregnancy Discrimination Act and possibly other state or local laws.

From a wage and hour standpoint, it is important to note that the waiting time for temperature testing may well be compensable.

Finally, under OSHA regulations as they currently stand, if an employer tests an employee and creates a medical record, the employer must retain the record for the duration of the employee's employment, plus 30 years.

By Sarah M. Phaff

Atlanta Office

The EEOC issued more guidance! On March 19, 2020, the Equal Employment Opportunity Commission updated its 2009 Pandemic Preparedness Guidance to address questions concerning the COVID-19 pandemic. As we previously reported, the EEOC issued (and updated) guidance specifically concerning COVID-19 entitled, “What You Should Know About the ADA, the Rehabilitation Act, and COVID-19.” This COVID-19 communication repeatedly references the EEOC’s 2009 pandemic guidance, which was originally released in connection with the H1NI outbreak.

The EEOC’s revised pandemic guidance states that the COVID-19 pandemic meets the direct threat standard based on the guidance of the CDC and public health authorities. This statement affects the analysis of many of the questions and answers posed in the pandemic guidance. Employers should read the revised guidance thoroughly and consult counsel, however, as the EEOC’s guidance does not address state-specific concerns or provide comprehensive information about other legal requirements related to employee privacy, compensation, etc.

Many of the significant additions are included below, with COVID-19 updates in bold (quoted verbatim):

• May an ADA-covered employer send employees home if they display influenza-like symptoms during a pandemic?

Yes. The CDC states that employees who become ill with symptoms of influenza-like illness at work during a pandemic should leave the workplace. Advising such workers to go home is not a disability-related action if the illness is akin to seasonal influenza or the 2009 spring/summer H1N1 virus. Additionally, the action would be permitted under the ADA if the illness were serious enough to pose a direct threat. Applying this principle to current CDC guidance on COVID-19, this means an employer can send home an employee with COVID-19 or symptoms associated with it.

• During a pandemic, how much information may an ADA-covered employer request from employees who report feeling ill at work or who call in sick?

ADA-covered employers may ask such employees if they are experiencing influenza-like symptoms, such as fever or chills and a cough or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.

If pandemic influenza is like seasonal influenza or spring/summer 2009 H1N1, these inquiries are not disability-related. If pandemic influenza becomes severe, the inquiries, even if disability-related, are justified by a reasonable belief based on objective evidence that the severe form of pandemic influenza poses a direct threat.

Applying this principle to current CDC guidance on COVID-19, employers may ask employees who report feeling ill at work, or who call in sick, questions about their symptoms to determine if they have or may have COVID-19. Currently these symptoms include, for example, fever, chills, cough, shortness of breath, or sore throat.

• During a pandemic, may an ADA-covered employer take its employees’ temperatures to determine whether they have a fever?

Generally, measuring an employee’s body temperature is a medical examination. If pandemic influenza symptoms become more severe than the seasonal flu or the H1N1 virus in the spring/summer of 2009, or if pandemic influenza becomes widespread in the community as assessed by state or local health authorities or the CDC, then employers may measure employees’ body temperature. 

However, employers should be aware that some people with influenza, including the 2009 H1N1 virus or COVID-19, do not have a fever.

Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions as of March 2020, employers may measure employees’ body temperature. As with all medical information, the fact that an employee had a fever or other symptoms would be subject to ADA confidentiality requirements.

• When an employee returns from travel during a pandemic, must an employer wait until the employee develops influenza symptoms to ask questions about exposure to pandemic influenza during the trip?

No. These would not be disability-related inquiries. If the CDC or state or local public health officials recommend that people who visit specified locations remain at home for several days until it is clear they do not have pandemic influenza symptoms, an employer may ask whether employees are returning from these locations, even if the travel was personal.

Similarly, with respect to the current COVID-19 pandemic, employers may follow the advice of the CDC and state/local public health authorities regarding information needed to permit an employee’s return to the workplace after visiting a specified location, whether for business or personal reasons.

• May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?

No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII ("more than de minimis cost" to the operation of the employer’s business, which is a lower standard than under the ADA).

Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it. As of the date this document is being issued, there is no vaccine available for COVID-19.

• During a pandemic, must an employer continue to provide reasonable accommodations for employees with known disabilities that are unrelated to the pandemic, barring undue hardship?

Yes. An employer’s ADA responsibilities to individuals with disabilities continue during an influenza pandemic. Only when an employer can demonstrate that a person with a disability poses a direct threat, even after reasonable accommodation, can it lawfully exclude him from employment or employment-related activities.

If an employee with a disability needs the same reasonable accommodation at a telework site that he had at the workplace, the employer should provide that accommodation, absent undue hardship. In the event of undue hardship, the employer and employee should cooperate to identify an alternative reasonable accommodation.

Example C: An accountant with low vision has a screen-reader on her office computer as a reasonable accommodation. In preparation for telework during a pandemic or other emergency event, the employer issues notebook computers to all accountants. In accordance with the ADA, the employer provides the accountant with a notebook computer that has a screen-reader installed.

All employees with disabilities whose responsibilities include management during a pandemic must receive reasonable accommodations necessitated by pandemic conditions, unless undue hardship is established.

Example D: A manager in a marketing firm has a hearing disability. A sign language interpreter facilitates her communication with other employees at the office during meetings and trainings. Before the pandemic, the employer decided to provide video phone equipment and video relay software for her at home to use for emergency business consultations. (Video relay services allow deaf and hearing impaired individuals to communicate by telephone through a sign language interpreter by placing a video relay call.) During an influenza pandemic, this manager also is part of the employer’s emergency response team. When she works from home during the pandemic, she uses the video relay services to participate in daily management and staff conference calls necessary to keep the firm operational.

The rapid spread of COVID-19 has disrupted normal work routines and may have resulted in unexpected or increased requests for reasonable accommodation. Although employers and employees should address these requests as soon as possible, the extraordinary circumstances of the COVID-19 pandemic may result in delay in discussing requests and in providing accommodation where warranted. Employers and employees are encouraged to use interim solutions to enable employees to keep working as much as possible. 

• If an employer is hiring, may it screen applicants for symptoms of COVID-19?

Yes. An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job. An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job. This ADA rule allowing post-offer (but not pre-offer) medical inquiries and exams applies to all applicants, whether or not the applicant has a disability. 

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

Yes. Any medical exams are permitted after an employer has made a conditional offer of employment. However, employers should be aware that some people with COVID-19 do not have a fever.

• May an employer delay the start date of an applicant who has COVID-19 or symptoms associated with it? 

Yes. According to current CDC guidance, an individual who has COVID-19 or symptoms associated with it should not be in the workplace.
CDC has issued guidance applicable to all workplaces generally, but also has issued more specific guidance for particular types of workplaces (e.g. health care employees). Guidance from public health authorities is likely to change as the COVID-19 pandemic evolves. Therefore, employers should continue to follow the most current information on maintaining workplace safety. To repeat: the ADA does not interfere with employers following recommendations of the CDC or public health authorities, and employers should feel free to do so. 

 
• May an employer withdraw a job offer when it needs the applicant to start immediately but the individual has COVID-19 or symptoms of it?

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

Finally, it is noteworthy that the EEOC prefaced its updated pandemic preparedness guidance by stating “[e]mployers and employees should follow guidance from the Centers for Disease Control and Prevention (CDC) as well as state/local public health authorities on how best to slow the spread of this disease and protect workers, customers, clients, and the general public. The ADA and the Rehabilitation Act do not interfere with employers following advice from the CDC and other public health authorities on appropriate steps to take relating to the workplace.”

Please be aware that substantial changes in the governmental guidance and even in the underlying laws are occurring on almost a daily basis, which will impact the analysis of the legal issues related to COVID-19. It is critical that you check the Resource Center often for the most recent information and stay in continual contact with a Constangy attorney.

It is critical that you check the Resource Center often for the most recent information and stay in continual contact with your Constangy attorney.

The deductible below the minimum annual deductible otherwise required under 2 section 223(c)(2)(A) for an HDHP, will be disregarded for purposes of determining the status of the plan as an HDHP. BACKGROUND Section 223 of the Code permits eligible individuals to deduct contributions to HSAs.1 

Among the requirements for an individual to qualify as an eligible individual under section 223(c)(1) is that the individual be covered under an HDHP and have no disqualifying health coverage. As defined in section 223(c)(2), an HDHP is a health plan that satisfies certain requirements, including requirements with respect to minimum deductibles and maximum out-of-pocket expenses. RELIEF Due to the unprecedented public health emergency posed by COVID-19, and the need to eliminate potential administrative and financial barriers to testing for and treatment of COVID-19, a health plan that otherwise satisfies the requirements to be an HDHP under section 223(c)(2)(A) will not fail to be an HDHP merely because the health plan provides medical care services and items purchased related to testing for and treatment of COVID-19 prior to the satisfaction of the applicable minimum deductible. 

As a result, the individuals covered by such a plan will not fail to be eligible individuals under section 223(c)(1) merely because of the provision of those health benefits for testing and treatment of COVID-19. 1 Tax-favored contributions may also be made on behalf of eligible individuals by their employers. See Q&A 19 of Notice 2004-2 (2004-2 I.R.B. 269). 3 This guidance does not modify previous guidance with respect to the requirements to be an HDHP in any manner other than with respect to the relief for testing for and treatment of COVID-19. Vaccinations continue to be considered preventive care under section 223(c)(2)(C) for purposes of determining whether a health plan is an HDHP. 

This notice provides flexibility to HDHPs to provide health benefits for testing and treatment of COVID-19 without application of a deductible or cost sharing. Individuals participating in HDHPs or any other type of health plan should consult their particular health plan regarding the health benefits for testing and treatment of COVID-19 provided by the plan, including the potential application of any deductible or cost sharing.

DRAFTING INFORMATION The principal author of this notice is Jennifer Solomon of the Office of Associate Chief Counsel (Employee Benefits, Exempt Organizations, and Employment Taxes), though other Treasury Department and IRS officials participated in its development. For further information on the provisions of this notice, contact Jennifer Solomon at (202) 317-5500 (not a toll-free number).