Students of Greek mythology will recall the story of Scylla and Charybdis, two monsters in Homer’s Odyssey that patrolled the uncharted waters of the western Mediterranean, forcing travelers caught between them to choose which unpleasant alternative they wished to confront.
During the uncharted waters of the past month, employers find themselves caught between their own Scylla and Charybdis in many ways, trying to navigate their legal and moral obligations to keep their employees as safe as possible from exposure to COVID-19, while still required to comply with a vast number of other federal, state, and local laws with conflicting priorities.
One example of such a conflict relates to the ability of employers to require employees who have been sick—including those with acute respiratory illness and potentially those who have previously tested positive for or been suspected of having COVID-19—to supply documentation from a health care provider certifying their fitness for duty before permitting them to return to work.
The federal Equal Employment Opportunity Commission (“EEOC”) is charged with responsibility for enforcing the Americans with Disabilities Act (“ADA”) and other federal laws prohibiting discrimination in the workplace. On March 19, 2020, the EEOC issued guidance on “What You Should Know About the ADA, the Rehabilitation Act, and COVID-19“, which specifically addressed the question of whether the ADA allows employers to require doctors’ notes in such circumstances, stating:
Yes. Such inquiries are permitted under the ADA either because they would not be disability-related or, if the pandemic influenza were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees.
In recognition of the possible challenges employees might face in obtaining such documentation, the EEOC went on to suggest that employers should be flexible in the precise form such documentation might take, noting:
As a practical matter, however, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp or an e-mail to certify that an individual does not have the pandemic virus.
Relying on this guidance and in an effort to protect their workforces from unnecessary exposure, many U.S. employers adopted practices or policies requiring employees to produce documentation from their health care providers certifying they were free from COVID-19 before allowing them to return to work after previously testing positive for it or showing symptoms of it. Their continued ability to do so, however, is in question based on apparently conflicting legal obligations placed on businesses by Stay at Home/Shelter in Place orders issued by governors of various states.
On April 6, 2020, for example, Indiana Governor Holcomb amended Indiana’s Stay at Home Executive Order (EO 20-18) to place new restrictions and obligations on employers while the order is in effect, including ordering all businesses and employers, whether deemed to be essential or not, to take the following actions:
• Allow as many employees as possible to work from home by implementing policies in areas such as teleworking and video conferencing.
• Actively encourage sick employees to stay home until they are free of fever (without the use of medication) for at least 72 hours (three full days) AND symptoms have improved for at least 72 hours AND at least seven days have passed since symptoms first began. Do not require a health care provider’s note to validate the illness or return to work of employees who are sick with acute respiratory illness; health care provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely way.
• Ensure your sick leave policies are up to date, flexible and non-punitive in order to allow sick employees to stay home to care for themselves, children or other family members. Consider encouraging employees to do a self-assessment each day in order to check if they have any COVID-19 type symptoms (fever, cough or shortness of breath).
• Separate employees who appear to have acute respiratory illness symptoms from other employees and send them home immediately. Restrict their access to the business until they have recovered.
• Reinforce key messages to all employees (including stay home when sick, use cough and sneeze etiquette and practice hand hygiene), and place posters in areas where they are most likely to be seen. Provide protection supplies such as soap and water, hand sanitizer, tissues and no-touch disposal receptacles for use by employees.
• Frequently perform enhanced environmental cleaning of commonly touched surfaces, such as workstations, countertops, railings, door handles and doorknobs. Use the cleaning agents that are usually used in these areas and follow the directions on the label. Provide disposable wipes so commonly used surfaces can be wiped down by employees before each use.
• Be prepared to change business practices, if needed, in order to maintain critical operations (e.g., identify alter native suppliers, prioritize customers or temporarily suspend some of your operations).
While most of these new requirements are consistent with guidance provided at the federal level, the highlighted language warning employers to “not require a health care provider’s note to validate the illness or return to work of employees who are sick with acute respiratory illness” appears on its face to be inconsistent with the EEOC’s guidance and to place employers in a serious dilemma in Indiana and in other states with similar language in their Stay at Home/Shelter in Place orders. In addition, there will be employees who, while they do not suffer from an acute respiratory illness, are vulnerable to COVID-19 for a variety of reasons, such as being immune-compromised. It is not clear whether EO 20-18 was deliberately intended to cause employers to modify their return-to-work documentation policies solely in regard to employees who did not work due to acute respiratory illnesses.
While these questions and apparent inconsistencies are interesting, business owners must make judgment calls in real time, with real consequences for their workforces and operations. Given the fact that the Stay at Home/Shelter in Place orders contain serious penalties for businesses that violate them—including the possibility of being shut down after repeated violations and even potential criminal prosecution—this is not an issue that can be taken lightly.
In Indiana, at least, one alternative approach can be taken from the language of EO 20-18 itself, which directs employers to actively encourage sick employees to stay home until three conditions are met:
a. They are free of fever—without the use of medication—for at least 72 hours (three full days);
b. Symptoms of their sickness have improved for at least 72 hours; and
c. At least seven days have passed since their symptoms first began.
Nothing in EO 20-18 prohibits employers from requiring employees to certify themselves in writing that these three conditions have been met, which might be one option for Indiana employers to consider taking in order to balance their obligations under state law against their desire to protect employees from unnecessary exposure.
To fully discuss these and other issues related to the impact of COVID-19 on your workplace, please contact Michael Tooley, Michael Blickman, Ryan Poor or the Ice Miller LLP Labor, Employment and Immigration attorney with whom you regularly work.
This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.