With many states softening their shelter-in-place orders and allowing businesses to reopen, COVID-19 has prompted governmental agencies to recommend new workplace health and safety measures, including taking a worker’s temperature before a shift begins.
As a new ABA Legal Fact Check describes, these and other actions, which would ordinarily raise concerns related to employee privacy and other workplace legal issues, are becoming commonplace during the pandemic as state and federal agencies seek to balance workplace safety with reasonable employee accommodations.
Are such actions legal? Although federal law has generally permitted a physical exam as a condition of employment, the Equal Employment Opportunity Commission (EEOC) recently cited Centers for Disease Control warnings about “community spread” and determined measuring a worker’s temperature would be permissible during the pandemic.
Federal law obligates employers to establish a workplace that’s “free from recognized hazards” that would likely “cause death or serious physical harm” to employees. In recent guidance, the Occupational Safety and Health Administration (OSHA) advises employers to keep their workers six feet away from others when possible, take temperatures, disinfect surfaces, and provide face masks, hand sanitizers and barriers when appropriate.
Courts have repeatedly upheld the power of Congress to require employers to provide workers “safe and healthful working conditions.” Less clear, however, is the reach of the Americans with Disabilities Act (ADA) in a time of a national crisis, such as a pandemic.
In 1998, the U.S. Supreme Court ruled that an asymptomatic HIV-infected individual who was refused treatment by a dentist was disabled within the meaning of the ADA. It is fair to assume that a symptomatic COVID-19 victim would also be covered by ADA protections as the virus does constitute a physical impairment and the symptoms can substantially limit several major life activities.
But employees with the mere fear of getting COVID-19 might not gain legal protections. In September 2019, a three-judge federal appeals court panel ruled unanimously that the ADA only protects persons with current disabilities or impairments, not “a potential future disability that a healthy person may experience later.” The panel upheld the firing of a Florida woman who went, against her employer’s request, to Ghana in 2014 during an outbreak of the Ebola virus.
As the ABA Legal Fact Check points out, state employment at-will laws remain during the pandemic and employers have wide latitude to modify arrangements to keep healthy workers healthy and tell sick workers to go home. But their actions must be consistent with federal, state and local laws.
- What You Should Know About COVID-19 and the ADA, the Rehabilitation Act and Other EEO Laws, EEOC (updated May 5, 2020)
- OSHA general workplace rules and COVID-19 fact sheet
- Selected court decisions:
- Bragdon v. Abbott, U.S. Supreme Court (1998)
- Equal Employment Opportunity Commission, on behalf of Kimberly Lowe, v. Stme, LLC, d.b.a. Massage Envy-South Tampa, U.S. Court of Appeals for the 11th Circuit (2019)
- Employment at-will exceptions by state
- ABA Journal COVID-19 coverage