The emergence of the Coronavirus (COVID-19) has created a great deal of uncertainty for employers faced with previously unseen issues surrounding their employees. Using general legal principles and recent guidelines of the Centers for Disease Contract (CDC) and Equal Employment Opportunity Commission (EEOC), here are a few key concepts that California employers should keep in mind.
COVID-19 is not a Disability under ADA
COVID-19, in and of itself, will not automatically qualify as a disability for purposes of the Americans with Disabilities Act (ADA), though it could lead to medical conditions that would qualify under the ADA. It can also lead to a need for a disability discussion due to underlying conditions, physical or even mental, that COVID-19 triggers. Discriminating based on a disability is actionable under the California Fair Employment Housing Act (FEHA) and other state and federal statutes.
Pre-employment Issues
ADA-covered employers may screen job applicants for symptoms of COVID-19 including taking temperature, but should be consistent category wide. Employers may delay the start date of applicant who has COVID-19 or its symptoms, or may withdraw a job offer for someone with COVID-19 or its symptoms that it needs to start immediately.
Current Employees
Employers may require employees who become ill with COVID-19 symptoms to stay home, and require a medical provider’s note to return to work. Employers may ask employees that call in sick if they are experiencing symptoms of the pandemic virus, and may restrict employees with COVID-19 from coming back to work until recognized milestones (including 2 negative test results and end of symptoms) are met.
What to Do Now
Employers should:
- Designate someone to oversee and address any COVID-19 related issues;
- Verbalize (and put in writing) policies related to COVID-19, and distribute the policies to employees;
- Review all polices related to safety, illness, and leaves of absence to identify gaps with the existing policies, and create those policies if they do not already exist;
- Stay current on all leave possibilities, and unemployment compensation opportunities;
- Understand that the laws and guidance is rapidly changing during this COVID-19 pandemic, and employers need to be constantly educating themselves on their rights and responsibilities; and
- Solidify job descriptions and essential functions each employee position should a good faith interactive process/accommodation discussion become necessary.
Joe Richardson is a Partner in the San Bernardino office of Borton Petrini, LLP. He is a member of Borton Petrini’s Employment Law Practice group.
Legal Disclaimer: Please be informed that legislation and laws are rapidly developing in response to the COVID-19 pandemic. Therefore, the legal analysis that is being provided is based on the analysis of the current legislation and current agency guidance, as it stands at this moment. Additional legislation and/or changes to current legislation may impact the information being given herein. This article is designed for general information only. The information presented should not be construed to be formal legal advice, nor the formation of a lawyer/client relationship.