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 The Spitz 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 lawyers in Cleveland, Columbus, Toledo, and Cincinnati to get help now. The Spitz Law Firm and its attorneys are experienced and dedicated to protecting disabled employees’ rights under ADA and Ohio employment law.
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 The Spitz Law Firm, Brian Spitz, or any individual attorney.