DOP Respiratory Viruses and the Workplace FAQ
May an agency ask an employee why he or she has been absent from work if the agency suspects it is for a medical reason?
Yes. Asking why an employee did not report to work is not a disability-related inquiry. An agency is always entitled to know why an employee has not reported for work. Example: If an employee calls in sick, an agency may ask whether the employee has a respiratory illness or common symptoms of illness as identified by the CDC.
How long does someone need to quarantine or isolate if they have symptoms of or tested positive for respiratory illness?
Due to the decreasing risk of COVID-19 disease and the disease's health impacts increasingly resembling those of other respiratory viral illnesses, on March 1, 2024, the CDC updated its guidance to cover a variety of respiratory diseasesWhile previous CDC guidance issued during the COVID-19 public health emergency recommended a minimum isolation period of five (5) days, the current CDC Preventing Spread of Respiratory Viruses When You're Sick recommends that people stay home and away from others for at least 24 hours after both their symptoms begin to improve AND they have not had a fever without the use of fever-reducing medication.
Since some people remain contagious beyond the “stay-at-home” period, the guidance recommends added precautions over the next five (5) days, such as taking additional steps for cleaner air, hygiene, masks, physical distancing, and/or testing when you will be around other people indoors. These precautions can lower the chance of spreading respiratory viruses to others. Individuals who have tested positive for a respiratory virus but are symptom-free may still be contagious. Precautions should be taken for the next five (5) days to lower the chance of spreading respiratory viruses to others.
May an agency require an employee who reports having a positive test result, exposure, or absence from the workplace due to a contagious respiratory illness to provide a doctor’s note certifying it is safe for the employee to return to work and that the employee is able to perform the job duties?
In accordance with the Division of Personnel’s (DOP) Administrative Rule (W. Va. Code R. §143-1-1 et seq.), absences of more than three continuous workdays, require a physician’s/practitioner's statement covering the entire period of the absence to be provided upon returning to work.
In limited circumstances, when an agency has a reasonable belief, based on objective evidence, that: (1) an employee's ability to perform essential job functions may be impaired by a medical condition, and (2) an employee may pose a direct threat to themselves or others due to a medical condition, the ADA allows an employer to require a confirmation from a qualified medical professional explaining that the individual is able to return safely. Supervisors are encouraged to contact their agency HR, legal counsel, or DOP Employee Relations prior to making such a request.
How much information may an agency request when screening employees entering the workplace or from an employee who calls in sick?
An agency may ask ALL employees entering the workplace (or otherwise working in close proximity with others) if they have symptoms associated with COVID-19 or other respiratory viruses as identified by the CDC.
If an agency chooses to ask only a particular employee to answer screening questions or undergo other screening measures, the ADA requires the employer to have a reasonable belief based on objective evidence that the individual may have a contagious respiratory disease, such as the presence of symptoms. Agencies should rely on the CDC, other public health authorities, and reputable medical sources for guidance on emerging symptoms when choosing questions to ask employees to determine whether they would pose a direct threat to health in the workplace.
May an agency require employees to wear a face covering while at work?
Yes. Wearing a mask can help lower the risk of respiratory virus transmission. Current CDC guidance recommends precautions such as masks, hygiene, physical distancing, and taking additional steps for cleaner air over the five (5) day period following an individual’s stay-at-home period and for asymptomatic individuals who have tested positive for a respiratory virus when they are around other people indoors. For the safety of employees, customers, and visitors, agencies may require employees to wear masks or other personal protective equipment (PPE) to reduce the potential spread of respiratory diseases. Employees may be responsible for providing their own masks. Employees are encouraged to discuss any concerns they have about wearing a mask with their immediate supervisor.
Employees working alone in a private office do not need to wear a face covering. However, they may be required to wear a mask when they exit the office or receive a visitor.
Are there restrictions on the type of face covering permitted in the workplace?
In addition to guidance issued by health and safety officials on the use of face coverings, face coverings must meet the standards of dress necessary to maintain a professional and safe working environment and to reflect an agency’s public image. Additional information regarding acceptable standards of dress is available in the DOP’s Agency Dress Codes policy (DOP-P3).
Do ADA confidentiality requirements prevent an employee from disclosing to a supervisor when a coworker is exhibiting symptoms associated with a respiratory illness?
No. It is not an ADA confidentiality violation for an employee to inform the supervisor about a coworker’s symptoms. After learning about the symptoms, the supervisor should contact appropriate management officials to report this information and discuss any steps necessary to help prevent workplace exposures. Agencies must maintain all information about an employee’s symptoms confidentially in compliance with the ADA.
A supervisor learns that an employee has symptoms associated with a respiratory virus. The supervisor knows it must be reported so measures may be taken to prevent the spread of disease, but is worried about violating ADA confidentiality. What should the manager do?
The identity of an employee exhibiting symptoms or who has tested positive must be limited to the agency representatives necessary to take corrective measures to prevent the spread of the disease. The individuals who “need to know” will vary by agency.
The ADA does not interfere with a designated representative of the employer, who may interview the employee to obtain a list of individuals with whom the employee may have had contact in the workplace, allowing the employer to take action by notifying those who may have come into contact with the employee, without revealing the employee’s identity.
An employee left the workplace sick, exhibiting symptoms of respiratory illness consistent with COVID-19. What should I do?
Clean and disinfect the employee’s work area, along with workplace common areas and frequently touched surfaces. Be sure to use an EPA-registered disinfectant that is EPA-approved for use against the virus that causes COVID-19 and is appropriate for the surface, following label instructions. Staff should continue to use safe practices, such as wearing masks, maintaining social distancing, and practicing good hygiene.
May an agency ask an employee who is physically reporting to the workplace if they have family members who have COVID-19 or symptoms associated with COVID-19?
No. The Genetic Information Nondiscrimination Act (GINA) prohibits employers from asking employees medical questions about family members. For example, GINA prohibits employers from asking employees to provide their family members’ medical examinations and/or test results. GINA, however, does not prohibit an employer from asking employees whether they have had contact with “anyone” diagnosed with or who may have symptoms associated with a contagious disease.
Under the ADA, what responsibility does an agency have to provide reasonable accommodation to an employee who may be at higher risk for developing complications associated with a respiratory disease?
According to the CDC, some employees may be at higher risk for developing complications associated with certain respiratory illnesses. This means that when an agency receives a request for accommodation to reduce the risk of exposure to a disease, the agency must consider this request under the ADA and engage in the interactive process to provide reasonable accommodations, barring undue hardship. The WV Department of Health’s Breathe Easy WV provides regular updates to the respiratory illness season and will focus on data that gives us the most accurate picture of the three major respiratory viruses that cause severe respiratory illness, including COVID-19, Respiratory Syncytial Virus (RSV), and Influenza (flu). To be eligible to receive workplace reasonable accommodations under the ADA, an employee must have an “actual,” “record of,” or “perceived as” having a disability, as defined by the ADA Amendments Act. The definition of disability is construed broadly in favor of expansive coverage to the maximum extent permitted by the law. Nonetheless, not every impairment will constitute a disability under the ADA. The ADA uses a case-by-case approach to determine if an applicant or employee meets any of the three above definitions of “disability.”
Are employees who are caregivers of individuals at higher risk for developing complications associated with respiratory disease entitled to receive a workplace accommodation under the ADA?
Employees who are caregivers of individuals with risk factors are not entitled to reasonable workplace accommodations under the ADA but may be entitled to leave under the federal Family and Medical Leave Act (FMLA) or the Parental Leave Act (PLA), W. Va. Code §21-5D-1. For more information, visit the Department of Labor, Wage and Hour Division guidance on FMLA and the DOP’s Reference Guide to FMLA and PLA.
What does an employee need to do to request a reasonable accommodation from the agency when they have one of the medical conditions that the CDC indicates may place them at higher risk for severe illness from respiratory disease?
An employee or a third party, such as an employee’s doctor, must notify the employer that they need an accommodation related to a medical condition (here, the underlying condition). Employees may request accommodations in conversation or in writing. While the employee (or third party) does not need to use the term “reasonable accommodation” or reference the ADA, he or she may do so. After receiving a request, the agency may ask questions or seek medical documentation to help determine the appropriate reasonable accommodation, barring undue hardship, that can be provided.
An employee required to wear PPE requests modified protective equipment or other accommodation. Must an employer grant these requests?
An employer may require employees to wear PPE and observe infection control practices (for example, regular hand washing and social distancing protocols). However, where an employee with a disability needs a related reasonable accommodation under the ADA (e.g., non-latex gloves, modified face masks for interpreters or others who communicate with an employee who uses lip reading, or gowns designed for employees who use wheelchairs), or a religious accommodation under Title VII of the Civil Rights Act as amended (such as modified equipment due to religious garb), the agency should discuss the request and provide the modification or an alternative if feasible and not an undue hardship on the operation of the employer's business under the ADA or Title VII.
Can an employee continue teleworking because of concerns regarding their own serious health condition?
When employees are directed to return to the worksite, agencies are not required to automatically grant telework as a reasonable accommodation to every employee with a disability who requests to continue teleworking as an ADA accommodation.
Any time an employee requests a reasonable accommodation, the employer is entitled to understand the disability-related limitation that necessitates an accommodation to determine if a request for continued or new accommodation under the ADA is feasible.
Alternatively, if the employer can effectively address the employee’s disability-related limitation with another form of reasonable accommodation at the workplace, then the employer can choose that alternative to telework. Should the employee be unable to telework, or telework becomes unavailable, or an alternate accommodation is not available, working from an alternate worksite should be considered, or it may be necessary for the employee to request the appropriate form of leave.
May a requested accommodation be temporarily denied because it poses an undue hardship?
Yes. An agency is not required to provide a reasonable accommodation if it poses an "undue hardship," which means "significant difficulty or expense." An employer has the discretion to choose among effective accommodations. Where a requested accommodation would result in undue hardship, the employer must offer an alternative accommodation if one is available, absent undue hardship. In discussing accommodation requests, employers and employees may find it helpful to consult the Job Accommodation Network (JAN) website for types of accommodations.
Can an agency change an employee’s work schedule when he or she returns from teleworking?
Yes, according to section 14.2 of the Administrative Rule, agencies establish the work schedule for their employees and may include any work shifts they determine to be appropriate for the efficient operation of their agency.
What action can be taken if an employee refuses to return to work?
If an employee refuses to return to work, as directed by his or her supervisor, appropriate disciplinary action may be taken. Agencies should consult their HR representatives and/or legal counsel before taking such action. Agencies may also contact the DOP Employee Relations section at 304-414-1853 for guidance.
Additional guidance and updates regarding COVID-19 and respiratory viruses may be found by visiting:
The WV Department of Health, Breathe Easy WV
CDC, Preventing Respiratory Illnesses
CDC, Respiratory Virus Activity Levels Activity levels are determined weekly based on the percentage of visits to enrolled outpatient healthcare providers or emergency departments for fever, cough, or sore throat reported to ILINet.
U.S. EEOC, What you should know about COVID-19 and the ADA and other EEO Laws.
ADA, Your Responsibilities as an Employer.
