Employment Law Report
EEOC ISSUES GUIDANCE ON WHAT EMPLOYERS SHOULD KNOW ABOUT THE ADA AND REHABILITATION ACT IN LIGHT OF COVID-19
It is now common knowledge that the World Health Organization (“WHO”) has classified COVID-19 as an international pandemic. This week, The U.S. Equal Employment Opportunity Commission (“EEOC”) issued guidance to employers on implementation strategies to utilize in navigating the impact of COVID-19 in the workplace, specifically how it impacts the Americans With Disabilities Act (“ADA”) and Rehabilitation Act. While the EEOC continues to enforce the rules and requirements contained under both Acts, the agency also recognizes that its authority “do[es] not interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state/local public health authorities about steps employers should take regarding COVID-19.”
The EEOC drafted a publication titled “Pandemic Preparedness in the Workplace and the Americans With Disabilities Act” in 2009 during the “swine flu” influenza pandemic. Many of the principles utilized and followed at that time regarding workplace safety during a pandemic and how such issues can impact the ADA and Rehabilitation Act are still relevant today. A copy of the publication can be found by clicking on the following link: https://www.eeoc.gov/facts/pandemic_flu.html.
The EEOC’s pandemic publication also includes a section that addresses common employer questions regarding what actions can be taken in the workplace following the declaration of the existence of a pandemic. Applying these principles to our current pandemic, the EEOC has provided the following guidance:
- 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?
During a pandemic, ADA-covered employers 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.
- When may an ADA-covered employer take the body temperature of employees during the COVID-19 pandemic?
Generally, measuring an employee’s body temperature is a medical examination. Because the Center for Disease Control (“CDC”) and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees’ body temperatures. However, employers should be aware that some people with COVID-19 do not have a fever.
- Does the ADA allow employers to require employees to stay home if they have symptoms of the COVID-19?
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.
- When employees return to work, does the ADA allow employers to require doctors’ notes certifying their fitness for duty?
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.
- If an employer is hiring, may it screen applicants for symptoms of COVID-19?
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.
- May an employer take an applicant’s temperature as part of a post-offer, pre-employment medical exam?
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.
- May an employer delay the start date of an applicant who has COVID-19 or symptoms associated with it?
Yes. According to current CDC guidance, an individual who has COVID-19 or symptoms associated with it should not be in the workplace.
- 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?
Based on current CDC guidance, this individual cannot safely enter the workplace, and therefore, the employer may withdraw the job offer.
Please continue to check our Labor and Employment blog for further updates and information regarding COVID-19’s impact on federal and state employment laws and policies, as well as to obtain suggested best practices. Also, for additional information generally on the EEOC’s guidance on the pandemic, please visit the agency’s website at www.EEOC.gov.