What about the Americans with Disabilities Act?
The ADA generally prohibits discrimination against individuals with "disabilities" as defined in the law and requires reasonable accommodation in certain circumstances. It also imposes restrictions on the medical information that employer may obtain, and requires that employee medical information be kept confidential and separate from the employee's personnel file. These last two provisions of the ADA apply to all employees, not just employees with disabilities.
Under the more liberalized definition of "disability" that has been in effect since 2009, it is likely that some manifestations of COVID-19 would be considered disabilities. In addition, the law protects individuals who have a history of a disability, or who are "regarded as" having a disability, even if they have no "current" or actual condition.
The ADA's confidentiality provisions can present difficulties when an employer learns that an employee has an contagious illness, such as COVID-19. If the employer learns that its workforce may have been exposed to COVID-19, the employer should simply tell employees generally of the exposure or potential exposure (and, of course, any precautions that they should take) but without providing information that would identify the individual employee. The ADA also prohibits employers from requiring current employees to undergo medical examinations unless the examinations are "job-related and consistent with business necessity." This would prohibit an employer from making a blanket demand that all employees – or all employees in a given unit – be screened for COVID-19.
However, ADA does give employers the ability to assess whether an employee is a "direct threat." The term "direct threat" is defined as "[a] significant risk of substantial harm to health or safety of self or others that cannot be eliminated or reduced by reasonable accommodation." Thus, if the employer learns that a particular employee has or has been exposed to COVID-19, the employer should be permitted to send that employee for a medical assessment to determine the extent of the risk to other employees and how best to accommodate the employee who is ill.
A determination that a direct threat exists must be based on an individualized assessment of the employee's present ability to perform the essential functions of the job safely, considering reasonable medical judgment that relies on the most current medical knowledge or the best available objective evidence. The availability of any "reasonable accommodation" that would reduce or eliminate the risk of harm must also be considered.
As the COVID-19 outbreak evolves, employers should stay abreast of the latest CDC guidance and consult with qualified employment counsel.