Now that the World Health Organization (“WHO”) has designated coronavirus (“COVID-19”) a pandemic, employers may wonder what, if anything has changed and how they can help prevent workplace exposure for their employees.

The WHO noted that the designation of COVID-19 as a pandemic does not change its assessment of the threat posed by the virus. Previously, we provided the EEOC’s 2009 guidance for employers on handling illnesses like the influenza pandemic, the seasonal flu, and H1N1. That guidance suggests certain actions employers may lawfully take when both the WHO and the CDC declare a pandemic. Even when a pandemic is declared, the extent to what an ADA-covered employer can do depends on the CDC and state or local health authorities’ assessment of the severity of the illness.

When employees call in sick or ask to go home during a pandemic, ADA-covered employers can ask such employees if they are experiencing the COVID-19 symptoms, such as fever, cough, or shortness of breath. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA. If COVID-19 is like seasonal flu or spring/summer 2009 H1N1, these inquiries are not disability-related. If COVID-19 becomes severe, the inquiries, even if disability-related, are justified by a reasonable belief based on objective evidence that the severe form of COVID-19 poses a direct threat.

Further, employers can measure employees’ body temperatures if the COVID-19 pandemic become more severe than the seasonal flu or the H1N1 virus in the spring/summer of 2009, or if COVID-19 becomes widespread in the community as assessed by state or local health authorities or the CDC.

Importantly, employers cannot ask asymptomatic employees whether they have preexisting health conditions that could make them more susceptible to the COVID-19 pandemic unless the COVID-19 pandemic becomes more severe or serious according to the assessment of local, state or federal public health officials.

When studying the EEOC’s guidance and the CDC’s interim guidance for employers, employers may notice that the CDC and the EEOC note that telecommuting can help reduce the risks of workplace exposure to illnesses. However, there are some practical considerations employers must consider before advising employees to work from home.

First, employers must be prepared to account for any time worked by employees who are not exempt from overtime requirements of the Fair Labor Standard Act (“FLSA”). Telecommuting may make this more difficult, so employers should assess whether and to what extent they can ensure proper timekeeping practices for these employees. The FLSA requires that nonexempt employees receive time and one-half pay for every hour worked over 40 in a workweek. Similarly, FLSA exempt employees must be paid for the full week for any week in which they perform work at all. Employers must advise all employees to record time properly and not to confused sick leave with telecommuting.

Next, employers should consider that shifting a significant amount of employees to telecommuting simultaneously may put a strain on IT departments, company assets, and technological capabilities. Employers should assemble teams to assess these resources. If IT resources are scarce but employers still need to implement telecommuting, employers should check their personal device use policies (“Bring Your Own Device Policies”) to make sure that key areas like security are covered. Even during a health emergency such as COVID-19, employers may have obligations to preserve information and documents for ongoing or anticipated litigation. Device policies should address document retention, and employers should consult with counsel to review any litigation hold letters for compliance during telecommuting.

Lastly, before instituting a telecommuting workweek, employers should implement or check preexisting telecommuting policies to ensure that they cover the company’s expectations for how work is performed, resources used, communication with superiors, security, and workplace-specific considerations.

[View source.]