Last week our office provided a guidance document encouraging School Districts to begin preparations for responding to a potential outbreak of the coronavirus in Pennsylvania. Since that guidance was issued, several individuals in Pennsylvania have tested positive for the virus. As of March 17, 2020, those cases have been confined to the eastern side of the state. However, the disease continues to creep closer to Western Pennsylvania, as the State of Ohio confirmed that three confirmed cases have been diagnosed in and around Cleveland.
We encourage School Districts to continue their efforts to prevent the spread of the disease by following federal and state guidance for disease prevention. However, we also encourage everyone to prepare for the possibility that a significant portion of School District staff may be required to remain out of work for an extended period of time. Regardless of whether an employees’ absence is due to an active outbreak of the virus, results from a quarantine, or stems from the employees’ need to care for family members, School Districts should prepare for the possibility of increased absences from work. To that extent our office has been responding to several common questions attempting to balance the practical implications of exposure to the virus with an employer’s obligations under applicable laws. Our office offers the following guidance on several of the most common questions we have received.
- What questions can a School District ask related to the health of their employees?
Questions have arisen as to how much information a School District can request from its employees who may have come into contact with infected persons or who may present with flu-like symptoms and calling in sick. Guidance from the Equal Employment Opportunity Commission (EEOC) suggests that, under normal circumstances, the Americans with Disabilities Act (ADA) generally prohibits employers from making disability-related inquiries or medical examinations unless they are job-related and consistent with business necessity.
An exception to this general rule exists where an employee will pose a direct threat due to a medical condition. It is highly likely that the potential for coronavirus exposure would constitute a direct threat under this test. Accordingly, an employer may inquire of its employees who are calling in sick whether or not they are experiencing flu-like symptoms. School Districts must maintain this information in strict confidentiality in order to maintain compliance with the ADA and HIPAA. This information can inform the School District as to its next steps moving forward.
- Can a School District direct its employees to leave work if they are sick?
Another common question is whether or not an employer may direct an employee who presents at work with flu-like symptoms to leave the workplace. In short, EEOC guidance permits employers to direct employees to leave work. Other employment related issues, such as charging accrued sick time against an employee who is directed by the School District to leave is beyond the scope of EEOC guidance and these questions should be directed to Maiello, Brungo & Maiello for further guidance.
- What must an employee do to return to work?
School Districts have also inquired as to whether or not a physician’s certificate is required before an employee who had been sent home can return to work. The ADA does permit an employer to require a physician’s note certifying an employee’s fitness for duty. However, from a practical standpoint, governmental health entities have suggested that employers temporarily relax or suspend such policies due to the possibility that health care professionals may have higher priorities should the virus continue to grow exponentially. At that point, Maiello, Brungo & Maiello could further advise your School District and work with applicable labor associations to achieve an appropriate resolution.
Our office continues to monitor the outbreak of the coronavirus as well as any guidance issued by state and federal agencies. We encourage you to contact our office with any questions as to your legal obligations during this event.
The Pennsylvania Departments of Education and Health have promulgated the following resources to assist School Districts, both in mitigating against an outbreak and preparing for the potential that an outbreak of the Coronavirus could occur:
Centers for Disease Control and Prevention Website
Pennsylvania Department of Education – Coronavirus Page
Pennsylvania Department of Health – Coronavirus Information for Education
Sample Checklist for Pandemic Influenza
At this time, disease prevention and monitoring should be the School District’s primary concern. Should any legal issues arise related to your School District’s response to the Coronavirus, our office can assist you in resolving those matters.