On March 11, 2020, Nick Reiter was quoted in SHRM about how employers should go about sending home someone who has symptoms of coronavirus. According to the article, the possibility that employees may only have—or claim they only have—allergies may make sending them home more contentious.
Don't probe about a medical condition, cautioned Reiter. "There is a subtle but important distinction between asking if someone is 'feeling OK' versus asking if someone has a respiratory disease, such as chronic obstructive pulmonary disorder," he said.
"The former question, even if technically permitted under law, can quickly evolve into a conversation that leads to the latter inquiry, which is generally prohibited," he said. The Americans with Disabilities Act prohibits disability-related inquiries unless they are job-related and consistent with business necessity. But such an inquiry may be job-related and consistent with business necessity if an ill employee poses a direct threat to the health of others.
Employers should consider options for encouraging employees not to "tough it out" if they are sick, Reiter said. Some employers have temporarily permitted employees to run a negative paid-leave bank if they have not yet accrued enough sick leave or paid time off so far this year, he noted.
"This is a smart move for lowering the risk of an infection in the workplace, not to mention the risk of an OSH Act [Occupational Safety and Health Act] claim."
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