EEOC Provides Update On ADA & COVID-19 (March 23, 2020)

On 3/19/20, the Equal Employment Opportunity Commission (EEOC) provided an update on its views of how employers can deal with the COVID-19 pandemic consistent with the Americans with Disabilities Act (ADA), including in the areas of reasonable accommodation and medical examinations and inquiries.

The EEOC stated that the ADA’s rules continue to apply, but those rules do not interfere with or prevent employers from following the guidelines and suggestions made by the Centers for Disease Control (CDC) or state/local public health authorities about the steps that employers should take to deal with COVID-19.

Employers should realize that guidance from public health authorities is likely to change as the COVID-19 pandemic evolves. Therefore, employers should continue to follow the most current medical information on maintaining workplace safety.

After the 2009 H1N1 flu virus outbreak, the EEOC issued a guidance entitled “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act”. That guidance is still deemed valid and can help employers implement strategies to navigate the impact of COVID-19 in the workplace. On 3/19/20, the EEOC updated its prior guidance to address specific examples regarding COVID-19. The following new Q’s & A’s from the EEOC may be helpful to employers as they deal with the virus:

Q. How much information may an employer request from an employee who calls in sick, in order to protect the rest of its workforce during the COVID-19 pandemic?

A. During a pandemic, ADA-covered employers (those with 15 or more employees) may ask such employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these include symptoms 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.

Q. When may an ADA-covered employer take the body temperature of employees during the COVID-19 pandemic?

A. Generally, measuring an employee’s body temperature is a medical examination. Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees’ body temperature. However, employers should be aware that some people with COVID-19 do not have a fever.

Q. Does the ADA allow employers to require employees to stay home if they have symptoms of the COVID-19?

A. Yes. The CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace. The ADA does not interfere with employers following this advice.

Q. When employees return to work, does the ADA allow employers to require doctors’ notes certifying their fitness for duty?

A. Yes. Such inquiries are permitted under the ADA either because they would not be disability-related or, if the pandemic influenza were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees. As a practical matter, however, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus.

Q. If an employer is hiring, may it screen applicants for symptoms of COVID-19?

A. Yes. An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job. This ADA rule applies whether or not the applicant has a disability.

Q. May an employer take an applicant’s temperature as part of a post-offer, pre-employment medical exam?

A. Yes. Any medical exams are permitted after an employer has made a conditional offer of employment. However, employers should be aware that some people with COVID-19 do not have a fever.

Q. May an employer delay the start date of an applicant who has COVID-19 or symptoms associated with it?

A. Yes. According to current CDC guidance, an individual who has COVID-19 or symptoms associated with it should not be in the workplace.

Q. May an employer withdraw a job offer when it needs the applicant to start immediately but the individual has COVID-19 or symptoms of it?

A. Based on current CDC guidance, this individual cannot safely enter the workplace, and therefore the employer may withdraw the job offer.

Clients with questions about the above or related issues may contact a Wimberly Lawson attorney for assistance.