Is it legal to require employees who have taken a leave of absence due to COVID-19 to get a doctor's note prior to their return to the workplace?
According to guidance issued by the U.S. Equal Employment Opportunity Commission (EEOC), such inquiries are permitted under the Americans with Disabilities Act (ADA), as they are not considered to be disability-related. According to the EEOC, you may make medical (even disability-related) inquiries "only if they are job-related and consistent with business necessity." Maintaining a safe workplace certainly would be considered a business necessity.
However, doctors and other health care professionals may not be able to accommodate the volume of such requests, and therefore alternative certification processes should be considered. For example, in lieu of a personalized letter regarding fitness for duty, an email certification that an employee does not have or no longer presents a risk of spreading the virus may be in order.
What are the laws and guidelines for protecting employees' privacy regarding medical information?
The ADA requires that all medical information regarding employees must be stored separately from personnel files in order to decrease access to the protected and confidential information. Covered examples of medical information includes any employee statements regarding potential exposure to COVID-19 or documentation regarding questioning an employee about the virus or about potential symptoms.
While federal laws and suggestions provide a base level of guidance, individual cities or states may have more stringent privacy-related restrictions regarding an employee's health-related information. Generally, you should follow state and local laws if they provide more-stringent privacy protections than federal laws. Ask a lawyer about the medical privacy and employment laws in your state and city if you're unsure.
What other steps can be taken once an employee returns from sick leave?
Infection control practices, such as proper coughing and sneezing etiquette, regular hand washing, and proper tissue usage and disposal are advisable for all employees. If you enforce any specific guidelines, be sure to do so equally among the entire staff.
During a pandemic, you may require your employees to wear personal protective equipment, such as face masks and gloves in an effort to reduce the transmission of infection. That said, if an employee with a disability requires a related reasonable accommodation, such as non-latex gloves, the employer should provide the accommodation, absent undue hardship.
Where can I learn about medical examinations prior to hiring an employee, FMLA provisions, and other related information?
For additional information about requiring a medical examination or a doctor's note before hiring an employee, or during the hiring process, see Hiring During COVID-19 Shelter-in-Place: Legal Best Practices. For employer-specific information regarding family and medical leave (i.e. FMLA leave) or paid sick leave, see FMLA Guidelines and Paid Sick Leave Legal Answers for Employers. If you have questions about your specific situation, ask a lawyer.
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This article contains general legal information and does not contain legal advice. Rocket Lawyer is not a law firm or a substitute for an attorney or law firm. The law is complex and changes often. For legal advice, please ask a lawyer.
