Yes. Under the ADA’s direct threat analysis, an employer that reasonably believes, based on an individualized assessment, that an employee has symptoms of a condition that poses a direct threat to the employee or others, which would include 2019-nCoV, can require that the employee undergo medical testing to determine whether the employee, in fact, is infected. Further, if the test is job-related and consistent with business necessity, employers may require medical testing.
Yes. If an employer has an actual reasonable belief that the employee has been exposed to or has contracted 2019-nCoV, then the employer may send that person home to protect the rest of the workforce. It is important to note that discrimination claims can arise if an employee is singled out based on some protected characteristic. Further, employers must maintain the confidentiality of an employee’s health information.
No. Unless the employee is actually ill and required to be paid under paid sick leave laws, short-term disability programs, workers’ compensation, or any other applicable company policies, there is no need to pay employees who do not come to work because of Coronavirus fears (unless they are performing work while out of the office, of course (see above)). However, such employees should have the same opportunity as other employees to utilize paid time off benefits, such as vacation or personal days.
Yes, if travel is for business.
No, if travel is personal.
Employers in many states are prohibited from taking any adverse actions against employees for lawful off-duty conduct, which would include personal travel. Further, if an individual is traveling to an affected country, which happens to be his or her home country, the employee could allege national origin discrimination if he or she suffers an adverse employment action due to such travel.
According to the CDC:
The Order provides the following list of “Essential Businesses”:
- Healthcare Operations and Essential Infrastructure;
- Grocery stores, certified farmers’ markets, farm and produce stands, supermarkets, food banks, convenience stores, and other establishments engaged in the retail sale of canned food, dry goods, fresh fruits and vegetables, pet supplies, fresh meats, fish, and poultry, and any other household consumer products (such as cleaning and personal care products). This includes stores that sell groceries and also sell other non-grocery products, and products necessary to maintaining the safety, sanitation, and essential operation of residences;
- Food cultivation, including farming, livestock, and fishing;
- Businesses that provide food, shelter, and social services, and other necessities of life for economically disadvantaged or otherwise needy individuals;
- Newspapers, television, radio, and other media services;
- Gas stations and auto-supply, auto-repair, and related facilities;
- Banks and related financial institutions;
- Hardware stores;
- Plumbers, electricians, exterminators, and other service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operation of residences, Essential Activities, and Essential Businesses;
- Businesses providing mailing and shipping services, including post office boxes;
- Educational institutions—including public and private K-12 schools, colleges, and universities—for purposes of facilitating distance learning or performing essential functions, provided that social distancing of six-feet per person is maintained to the greatest extent possible;
- Laundromats, drycleaners, and laundry service providers;
- Restaurants and other facilities that prepare and serve food, but only for delivery or carry out. Schools and other entities that typically provide free food services to students or members of the public may continue to do so under this Order on the condition that the food is provided to students or members of the public on a pick-up and take-away basis only. Schools and other entities that provide food services under this exemption shall not allow the food to be eaten at the site where it is provided, or at any other gathering site;
- Businesses that supply products needed for people to work from home;
- Businesses that supply other essential businesses with the support or supplies necessary to operate;
- Businesses that ship or deliver groceries, food, goods or services directly to residences;
- Airlines, taxis, and other private transportation providers providing transportation services necessary for Essential Activities and other purposes expressly authorized in this Order;
- Home-based care for seniors, adults, or children;
- Residential facilities and shelters for seniors, adults, and children;
- Professional services, such as legal or accounting services, when necessary to assist in compliance with legally mandated activities;
- Childcare facilities providing services that enable employees exempted in this Order to work as allowed. To the extent possible, childcare facilities must operate under the following mandatory conditions:
- Childcare must be carried out in stable groups of 12 or fewer (“stable” means that the same 12 or fewer children are in the same group each day).
- Children shall not change from one group to another.
- If more than one group of children is cared for at one facility, each group shall be in a separate room. Groups shall not mix with each other.
- Childcare providers shall remain solely with one group of children.
You and your employees are allowed to perform “Minimum Basic Operations” at your work place, so long as employees maintain a distance of six feet from one another to the greatest extent feasible. Minimum Basic Operations include maintaining the value of inventory, ensuring security, and ensuring that employees can work remotely. Other than to maintain “Minimum Basic Operations,” employees can only work remotely from their residences.