Employers have been quick to take preventive measures – imposing sharp restrictions on travel, canceling conferences and instructing employees to work at home – during the coronavirus outbreak. But it’s critical for employers to stay compliant with the CDC, ADA, EEOC, HIPAA and FMLA in the face of the new illness, especially when it comes to federal employment regs.
Federal laws, agencies
Here’s how to put employees’ health first while still protecting your firm.
CDC: The Centers for Disease Control and Prevention (CDC) advises employers to implement heightened hygienic practices and workplace cleanings. The CDC also recommends employers replace in-person meetings with video or telephone conferences.
The CDC’s list of considerations also includes using “social distancing” techniques, such as working remotely or 6 feet apart for those who still need to work onsite.
ADA: While the coronavirus is typically a temporary illness and not a “disability” under the ADA, employers need to use caution when making employee inquiries.
Employers are allowed to ask questions relating to an employee’s exposure to the virus if they pose a “direct threat” under the ADA. To determine this risk, employers can inquire about the duration of the risk, the severity of the potential harm and the likelihood the harm will occur. If the threat seems imminent, employers can request the employee submit to a medical exam.
EEOC: The agency has issued guidance for employers on the impact of the outbreak, reminding them of steps to be taken to avoid violating the ADA. It also includes a number of examples employers may find useful as they navigate the coming weeks and months. For example, employers can send employees home if they’re experiencing virus-like symptoms.
HIPAA: The U.S. Department of Health and Human Services released a bulletin to clarify HIPAA’s privacy rules during the coronavirus outbreak. The “basic requirements of HIPAA still apply even in a public health emergency,” says Mintz Levin attorney Kristen Marotta. However, disclosures are allowed for treatment, for public health activities and to prevent a “serious and imminent threat,” says the bulletin.
FMLA: Since employees can’t use their 12 weeks of unpaid FMLA leave unless they have a serious health condition, an employee’s fear of contracting the virus wouldn’t quality for FMLA. However, they’re permitted to take the leave to care for a family member.