In part one of this two-part series, the contractor attorneys in Mobile, AL, from Cotney Construction Law discussed what medical conditions are and are not covered by the Americans with Disabilities Act (ADA). Now, we will discuss some other important considerations and illustrate common scenarios and the appropriate actions contractors can take to ensure that they do not violate the ADA.
Accounting for Your Employees’ Privacy
When one of your workers calls in sick, you might begin to instinctively question them about their sickness, not necessarily because you don’t trust them, but because you’re trying to make sure they’re okay. However, if you are too probing, you may find that you’re in violation of the ADA. After all, employees can develop an ADA-covered medical condition while under your employ, and you aren’t legally allowed to ask them medical questions before hiring them according to the U.S. Equal Employment Opportunity Commission (EEOC).
Once an employee has been hired, their employer may only ask medical questions if the employee has a request for certain accommodations related to a medical condition or if the employer believes that an employee’s medical condition will prevent them from performing a job safely. You might feel like you’re being taken advantage of by not pressing your employees for more information when they call out sick, but you don’t want to accidentally violate the ADA, either.
Bryan Cavanaugh, a St. Louis-based employment attorney, told the U.S. News & World Report that employers “are allowed to ask for the details” of an employee’s illness, so long as they are accepting of a “brief and general explanation of why he or she is absent.” Typically, a contractor’s best course of action is to simply ask the employee when they think they will be back to work, effectively avoiding any ADA-related complications.
Two Scenarios for Dealing with Sick Workers
There’s a fine balance between what is and is not acceptable when asking your workers about a sickness, especially considering the fact that employers can’t ask questions beyond those that are “job-related and consistent with business necessity.” Consider the following scenarios:
Scenario 1: One of your workers calls in sick.
- If the worker qualifies under the ADA, only ask questions that are “job-related and consistent with business necessity.”
- Otherwise, it’s still best to ask questions about the impact of the sickness on job performance. Remember, inaction that leads to the spread of biological agents can result in a citation from the Occupational Safety and Health Administration (OSHA).
Scenario 2: One of your workers asks to leave work early due to sickness.
- If the worker qualifies under the ADA, the contractor must provide reasonable accommodations.
- The contractor may dismiss the employee has needed. Wage deductions will follow the employer’s policies for sick leave or paid time off. Remember, keeping a sick employee on the job could cause the spread of an infectious disease like influenza. In this case, the contractor could be liable for permitting a “direct threat” to employee health to remain on the project site.
Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.