Labor Law and COVID Hot Topics

ADA Compliance, Employee Travel, and Requests for Leave Due to School or Childcare Closures

Submitted by: Benjamin A. Mazer, Esq., Coolidge Wall Co. LPA
Marc L. Fleischauer, Esq., Coolidge Wall Co. LPA

The COVID pandemic presents plenty of pitfalls and challenges for employers. From concerns related to employee summer travel, to maintaining a healthy workforce, to issues related to school closures as the school year approaches, there is no shortage of issues to navigate.

One of the primary considerations for employers during the pandemic is whether and what questions can be asked of employees related to their health under the Americans with Disabilities Act (“ADA”). Some inquiries that were impermissible under the ADA prior to the pandemic are now permitted.

• If an employee calls in sick, can the employer ask about the employee’s symptoms? Can an employer ask if the employee has tested positive for COVID?

During the pandemic, an employer may ask an employee who calls in sick or reports feeling ill whether he or she is experiencing COVID symptoms. Likewise, an employer may ask if the employee has been tested for COVID and whether the employee tested positive. Determining whether the employee has or may have COVID is important for employers so that they can conduct contact tracing and protect the rest of the workforce.

The CDC recommends sending home any employee who has had a risk of exposure and advising that employee to self-monitor for 14 days from the last known date of possible or actual exposure.

As before the pandemic, employers must maintain the confidentiality of information about an employee’s health. An employer should not reveal the identity of an employee with COVID, even if the identity of the individual becomes apparent to his or her coworkers.

• Can employers ask about an employee’s travel plans? Should an employee be required to quarantine or self-isolate upon return from travel? 

Some states have higher rates of COVID than others, and these “hot spots” led Ohio Governor DeWine to issue a travel advisory through the Ohio Department of Health on July 22, 2020, concerning states with positive COVID testing rates of 15 percent or higher.

Currently, the states on the Ohio travel advisory are Alabama, Arizona, Florida, Georgia, Idaho, Mississippi, Nevada, South Carolina, and Texas.

The Ohio travel advisory recommends any individuals returning from any of the nine states self-quarantine for a period of 14 days. The travel advisory is merely suggestive and not a mandate at this time.

Because the travel advisory is only a recommendation and not an order, employers can still decide whether their employees must self-quarantine away from the workplace upon returning from one of the travel advisory states. Additionally, employers may unilaterally decide on the length of time their employees should self-quarantine.

As a result, employers are permitted to ask employees about their travel plans. This question is not a disability-related inquiry and it is permissible under the ADA. If an employee is traveling to a “hot spot,” the employer may require that the employee monitor his or her symptoms and advise whether he or she falls ill.

• As we approach the school year, employers may receive requests for time off due to a school or childcare service being closed or unavailable. Is the employee entitled to a leave of absence under these circumstances?

An employee who requests time off to care for a child whose school or daycare is closed or unavailable due to COVID may be eligible for leave under the Expanded Family Medical Leave Act (“EFMLA”), the Emergency Paid Sick Leave Act or both.

Employers can and should ask employees requesting EFMLA and/or Emergency Paid Sick Leave to provide: the name and age of the child being cared for; the name of the school or childcare provider that closed or became unavailable due to COVID; and a statement representing that no other suitable person is available to care for the child during the period of requested leave. For children over the age of 14, employers should request a statement indicating any special circumstances indicating that such older children cannot care for themselves during daylight hours.

An employee is not eligible for expanded EFMLA or Emergency Paid Sick Leave if the employee is able to work remotely and care for the child.

For questions related to pay and duration of leave provided by the EFMLA and Emergency Paid Sick Leave statutes, employers should refer to the Department of Labor guidelines provided here: https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave.

These tips are no substitute for actual legal advice for specific situations. Employers are encouraged to consult with a legal professional during the COVID pandemic to ensure that personnel decisions are compliant with federal and state laws, best practices, and the latest available information, as laws and government guidance continue to change.

Marc L. Fleischauer (fleischauer@coollaw.com) and Benjamin A. Mazer (mazer@coollaw.com) are employment law attorneys with Coolidge Wall Co., LPA, in Dayton. They can be reached at 937-223-8177.