During A Pandemic, I Reported Feeling Ill At Work Or I Called In Sick. How Much Information May My Employer In Manhattan Ask Of Me Either During This Pandemic Or At Any Other Time?

During a pandemic, an employer in Manhattan may request a considerable amount of information from an employee who reports feeling ill at work or who calls in sick. Specifically, during a pandemic, employers covered by the federal Americans with Disabilities Act (the “ADA”) may ask such employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these symptoms include conditions such as fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.

Because of the COVID-19 pandemic, at this time employers may ask employees who work on site-, whether regularly or occasionally, and report feeling ill or who call in sick, questions about their symptoms as part of workplace screening for COVID-19.

An employer may always ask an employee why they have been absent from work. Asking why an employee did not report to work is not a disability-related inquiry. An employer is always entitled to know why an employee has not reported for work.

Suppose, for example, that during an influenza pandemic, an employer directs a supervisor to contact an employee who has not reported to work for five business days without explanation. The supervisor asks this employee why he is absent and when he will return to work. The supervisor’s inquiry is not a disability-related inquiry under the ADA.

Similarly, under the New York City Human Rights Law (the “City Human Rights Law” or the “NYCHRL”), and consistent with employers’ need to take reasonable steps to protect the health and safety of their businesses, employers may require employees to provide evidence of their ability to safely return to the workplace after recovering from COVID-19 and to confirm that they are not contagious.

As the U.S. Equal Employment Opportunity Commission (the “EEOC”) has observed, based on guidance from the U.S. Centers for Disease Control and Prevention (the “CDC”) and public health authorities, the COVID-19 pandemic qualifies as a direct threat to health in the workplace and employers are permitted to conduct medical examinations, such as a test to detect the presence of the COVID-19 virus or temperature testing, to confirm whether a particular employee poses a direct threat to workplace health and safety because of infection. This is the case even though, in the absence of the COVID-19 pandemic, such examinations would ordinarily be prohibited by disability protections under the NYCHRL.

Tests must not be administered in a discriminatory manner, for example, by testing employees based on their age, national origin, or other protected status.

If you are an executive or a professional in the New York City metro area and you believe that you have been wrongfully terminated or that your employer has failed or refused to reasonably accommodate your disability, call borough of Manhattan Wrongful Termination Attorney David S. Rich at (347) 835-5688 today.

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