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COVID-19: ADA, FMLA, National Origin Protections

Discrimination and Harassment

The Coronavirus is known to have originated in China and initially spread to Iran, Italy and other countries. Accordingly, employees from those regions, or employees who are suspected of having been exposed to, or contracting, the Coronavirus may be subject to harassing or otherwise inappropriate comments or conduct related to the Coronavirus outbreak. Federal, state and local laws prevent discrimination based on national origin, race, disability and other protected characteristics and employees should be reminded that the company code of conduct and anti-discrimination/anti-harassment provisions apply and employees should be respectful of other employees.

ADA and FMLA Protections

Employees may have protection under the Americans with Disabilities Act (ADA) and Family Medical Leave Act (FMLA) with regard to issues surrounding the Coronavirus outbreak (and similar infectious diseases, including the flu).

ADA

An employee with Coronavirus would likely fall within the definition of a “qualified individual with a disability” and be protected by the ADA, and it should be assumed that ADA protections apply. Additionally, an individual exposed to Coronavirus, or thought to be exposed (such as those who have travelled to the areas where the current outbreak is centered), might be able to present ADA claims under the theory that the employee was “regarded as” having the illness by their employer. Accordingly, ADA requirements should be followed, including the following key provisions related to the outbreak:

  • An employer cannot make medical inquiries of employees unless the inquiry is job-related and consistent with business necessity or if an employee voluntarily discloses medical information.
  • If an employer does make such inquiries, the employer must follow the ADA guidelines pertaining to medical records. These guidelines:
    require confidential maintenance of medical information, which should be kept separate and apart from the employee’s personnel file, and
    limit the distribution of such information to individuals with a legitimate need to know.

(If an employee is on a Coronavirus-related leave of absence employers may inform managers, supervisors, and others that an employee is on a leave of absence for non-disciplinary purposes.)

    • If an employee poses a direct threat to the health or safety of himself/herself or others, then an employer may require the employee to disclose health information. A positive test for Coronavirus (COVID-19) would almost certainly fall within this category.
    • Similarly, an employer will likely be permitted to require an employee to undergo medical testing if the employer reasonably believes, based on an individualized assessment, that an employee may have been exposed to Coronavirus, and demonstrates symptoms of Coronavirus. If such employee is represented by a union and covered by a collective bargaining agreement, the employer may have an obligation to notify the bargaining representatives and to meet, confer, and possibly negotiate before implementing mandatory testing.
    • Employer’s duty to members of the public. Title III of the ADA requires places of public accommodation to afford their services and activities to individuals with disabilities. Accordingly, where a place of employment is also a place of public accommodation (e.g., retail businesses, hotels, restaurants, etc.), the employer should carefully consider any policies that would subject guests or customers to restrictions or limitations in doing business with the employer, who are believed to be, or suspected to be, exposed to Coronavirus.

FMLA

    • An employee diagnosed with the Coronavirus is likely entitled to FMLA protections. If an employee is diagnosed with Coronavirus, this would likely constitute a serious health condition under Family and Medical Leave Act (FMLA) provisions. Once diagnosed, an otherwise eligible employee would be entitled to FMLA leave as certified by the employee’s health care provider, as with any other FMLA-qualified leave.