Best Ohio Employment Attorney Answer: Can my job make me work at home because of Covid-19 (Coronavirus)? What is the EEOC saying about the Coronavirus? Can my employer fire me if I have a disability, and I get Coronavirus? Can My Boss Make Me Work At Home Because Of The Coronavirus?
By now, I am sure that, like our employment lawyers, you are
tired of hearing about Covid-19, also known as Coronavirus. Unfortunately, this
global pandemic will likely be dominating the news cycles for weeks, if not
months, to come. In fact, just this past week, Ohio Governor Mike DeWine
ordered that all bars and restaurants be closed to dine-in customers. In doing
so, Ohio joins five other states that have taken similar
precautions. Governor DeWine then directed all employees to shelter in
place, closing all businesses except essential services.
As a quick aside, these closures will obviously have impacts
on all employees. Hopefully, Ohio takes a note from Washington D.C., where a
bill is being considered
that would extend unemployment benefits to those off work or working a reduced
schedule because of Covid-19. With luck, Ohio is considering similar emergency
legislation. As always, our employment
law attorneys at The
Spitz Law Firm, LLC, will keep you updated as the story develops. (see our
earlier blogs – Coronavirus:
What Will Happen At Work?; Our
Handling Of The Coronavirus (Covid-19) Outbreak; More
Coronavirus (Covid-19) Tips For Employees.)
Recently, the Equal Employment
Opportunity Commission (“EEOC”)
weighed
in on the rights of employers and employees during the Covid-19 outbreak. As
regular readers of our blog know, the EEOC is the federal agency that
investigates potential violations of Title VII of the Civil
Rights Act of 1964. Title VII is the federal law that makes it illegal for
an employer to discriminate against an individual based on their race/color, religion, gender/sex, national
origin, age,
and disability.
In Ohio, individuals are protected from such discrimination by R.C. § 4112.02(A).
We usually tell our blog readers to be wary of directly
filing with the EEOC before they call
the right attorney (See Top
Employment Law Attorney: Do Not File With The EEOC Without Doing This First; File
With The EEOC Or Get A Lawyer? Call The Right Attorney; Should
I Get A Lawyer To Help Me File An EEOC Charge?; and Should
I File With The EEOC On My Own? Call The Right Attorney). However, whenever
the EEOC puts out new and noteworthy guidelines, we are sure to take notice.
In their response to the Covid-19 outbreak, the EEOC
referenced their guidance
on dealing with pandemics. Specifically, the EEOC’s guidance discussed the
rights of employees and employers under the Americans with
Disabilities Act (“ADA”) before and
during a pandemic.
Below are some of the EEOC’s responses to frequently asked
questions. I have taken the liberty of translating some of their confusing
questions and answers into plain English and applying them to the current
Covid-19 situation.
- Before an influenza pandemic occurs, can
an employer ask an employee to disclose if they have a condition that the CDC
would classify as high risk for infection or complications, such as a
compromised immune system or chronic health issue?
No. Before there is a pandemic
like Covid-19, an employer cannot ask employees if they have health conditions
that may make them more vulnerable to infection, or serious complications
should they become infected. This is because these questions will likely force
an employee to disclose a disability. The ADA does not allow these questions
unless there is evidence that the pandemic will cause a direct threat to these
individuals or the rest of the workforce.
- Are there ways my employer can ask which
employees are less likely to be available in the case of a pandemic, without
violating the ADA?
Yes. The ADA allows employers to ask questions that are not
disability-related. However, the employer must carefully structure the question
so that it is not just asking about health conditions. In essence, the EEOC
permits an employer to ask a nonspecific yes or no questions regarding an
employee’s availability during a pandemic. So, an employer may not ask
an employee if they have a condition that makes them high-risk for infection
during a pandemic. However, they can ask an employee to give a general yes or no
answer to a series of questions. Questions such as, if public transportation is
shut down, can you make it to work, if other services were unavailable, would
you need time off to care for dependents, and does the Center for Disease
Control consider you or one of your family members as high risk for infection?
All of this can be very confusing. If your employer is asking specific
questions about your health conditions during the Covid-19 outbreak, call
the right attorney.
- Can my employer send workers home if they
display Covid-19 symptoms?
Yes. The ADA allows employers to
send employees home if the risk of infection poses a direct threat to that
employee or other workers. Further, the CDC encourages that employees that
become ill with pandemic symptoms leave the workplace.
- If I have to call in sick during the
Covid-19 pandemic, how much information can my employer request regarding my
absence?
During a pandemic like Covid-19,
employers are allowed to ask employees if they are experiencing symptoms of
Covid-19 infection. Symptoms such as fever, difficulty breathing, or a dry
cough. However, an employer must keep this information in a separate,
confidential medical record. It is likely, given the severity of Covid-19, the
EEOC would also allow an employer to ask disability-related questions as long
as these questions are also related to possible Covid-19 infection.
- Can my employer take my temperature to
see if I might have Covid-19?
Maybe. Employers are not usually
allowed to perform medical examinations on their employees, as so doing is a
violation of the ADA. However, in extreme cases, such as a global pandemic,
employers are allowed to take employee’s temperature in order to help stop the
possible spread of infection. Given the severity of Covid-19, it is unlikely
that the EEOC would find an ADA violation if your employer asked to take your
temperature, something that would typically be illegal.
- If I just returned from vacation, can my
employer ask me about possible Covid-19 exposure? Or, does my employer have to
wait until I start showing symptoms of infection?
No. The EEOC has determined that
asking employees who return from trips, about possible pandemic exposure is not
a line of questioning related to disabilities. Further, if the CDC or other
authority recommends, as they have in the case of Covid-19, that persons who
visited certain areas remain home for several days until they are sure they are
not infected, an employer can ask returning employees if they visited any of
these certain areas.
- During the Covid-19 pandemic, can my
employer ask if I have a medical condition that puts me at risk for
complications from Covid-19 even if I do not have Covid-19 symptoms?
It depends. If the pandemic is
similar to seasonal influenza or the H1N1 virus in the spring/summer of 2009, an
employer cannot ask if an employee has a high risk for complications if the
employee is not exhibiting symptoms. Again, that is because this line of
questioning is likely to force employees to disclose certain disabilities,
which is a violation of the ADA. However, even under these less serious
conditions, employers should allow employees who experience flu-like symptoms
to stay at home, which will benefit all employees, including those who may be
at increased risk of developing complications.
If medical experts determine that
a pandemic has become more serious or severe, an employer may be allowed to ask
employees if they have medical conditions that put them at a heightened risk
for complications from an infection. Employers would be allowed to ask these
questions to determine if the risk of infection poses a direct threat to the
health and safety of their employees.
Again, the severity of Covid-19
has likely risen to a level that permits employers to ask questions they are
generally not allowed to ask. This included asking employees with no Covid-19
symptoms if they are at a high risk of infection due to a disability.
- Can my employer ask me to work from home
as part of their Covid-19 response strategy?
Yes. Employers can encourage
employees to telework as part of their Covid-19 response strategy. In fact, we
here at Spitz, The Employee’s Law Firm have implemented it as part of our Covid-19 response
strategy (See
Our Handling Of The Coronavirus (Covid-19) Outbreak)
Moreover, employees who have
medical conditions that put them at high risk of complications from infection
may request telework as a reasonable accommodation. One thing that Covid-19 has
not changed is an employer’s duty to accommodate disabled employees.
As our employment lawyers
have blogged before, the ADA requires employers to provide reasonable
accommodations to employees who, either with or without such accommodations,
are qualified to “perform the essential functions of the employment position.”
(SeeHow
Do I Get A Disability Accommodation For My Job?;Can
A Service Dog Be A Disability Accommodation At My Job?; andDoes
My Job Have To Accommodate My Paralysis?).
So, while an employer may
encourage their employees to work from home, they may be required to allow
employees whose disabilities put them at high risk, to telework. (See our
previous blogs Top
Disability Discrimination Lawyer Reply: Is Working At Home A Reasonable
Accommodation?, Is
Time Off A Reasonable ADA Accommodation?, Can
A Schedule Change Be An ADA Accommodation? If you have a disability that
puts you at a high risk of infection, but your employer denied your request to
work from home, call the right
attorney today!
- Can my employer force me to wear a face
mask or gloves as part of their Covid-19 response strategy?
Yes. As part of their pandemic
response strategy, employers may ask employees to wear personal protective
equipment to help reduce the spread of the virus. However, when issuing this
personal protective equipment, an employer must make sure it accommodates
employees’ disabilities. These accommodations may include issuing non-latex
gloves or providing protective gowns that fit employees in wheelchairs.
- Can
my employer refuse to accommodate my disability because of the Covid-19
pandemic?
No. Even a global pandemic as
serious as Covid-19 does not excuse an employer’s obligation to accommodate
their employees with disabilities. These obligations include providing
reasonable accommodations at a telework site. For example, if a
hearing-impaired employee requires a special type of phone at the office, the
employer has an obligation to make sure that the employee has a similar device
at their telework site.
It is important to remember that
the EEOC is not the absolute authority in employment discrimination law.
However, as neither state or federal courts have spoken about the impact of
Covid-19 on employment discrimination cases, it is worth considering the EEOC’s
guidance on the topic.
Having to live with a disability is difficult enough without
worrying about the effect it may have on your job. If you are disabled or
your employer perceives you as being disabled; and you have been fired, wrongfully
terminated, discriminated against, demoted, wrongfully disciplined, denied
wages, or even think that you might need a disability
discrimination lawyer, then call the right attorney to
schedule a free and confidential consultation. The best option
is not to wait. Call our office at 866-797-6040. Spitz, The Employee’s Law Firm and its attorneys are experienced and dedicated to protecting disabled employees’ rights under ADA and Ohio employment law.
Disclaimer:
The materials
available at the top of this overtime, wage and hour web page and at this
employment law website are for informational purposes only and not for the
purpose of providing legal advice. If you are still asking, “I was fired during
the Coronavirus pandemic?”, “Does my company have to pay me hazard pay for
coming into work during the Coronavirus outbreak?”, Can I sue my employer for
not paying me enough?” or “How do I get money I’m owed for overtime”, the your
best option is to contact an Ohio overtime
attorney to obtain advice
with respect to ADA questions or any particular employment law issue. Use and
access to this employment law website or any of the links contained within the
site do not create an attorney-client relationship. The legal opinions
expressed at the top of this page or through this site are the opinions of the
individual lawyer and may not reflect the opinions of Spitz, The Employee’s Law Firm, Brian Spitz, or any individual attorney.