The Equal Employment Opportunity Commission (EEOC) has updated its guidance for the Pandemic Preparedness in the Workplace and the Americans with Disabilities Act to address the coronavirus disease 2019 (COVID-19). On March 11, 2020, the World Health Organization (WHO) officially declared COVID-19 a pandemic. During this uncertain time, employers are still required to comply with the ADA, while doing what they can to protect their employees from the spread of the virus.
The ADA allows medical inquiries when they are job-related and consistent with business necessity when an employer has a reasonable belief, based on objective evidence, that an employee will pose a direct threat due to a medical condition. At this time, based on CDC and public health authorities’ guidance, the EEOC acknowledges that the COVID-19 pandemic meets the direct threat standard. Given this determination, employers may:
- Send employees home who have COVID-19, or symptoms associated with it.
- Ask employees who report feeling ill at work, or who call in sick, questions about their symptoms to determine if they have or may have COVID-19. Currently, these symptoms include, for example, fever, chills, cough, shortness of breath, or sore throat.
- Measure employees’ body temperature. However, be aware that some people with COVID-19 do not have a fever. As with all medical information, the fact that an employee has a fever or other symptoms would be subject to ADA confidentiality requirements.
- Follow the advice of the CDC and state/local public health authorities regarding the information needed to permit an employee’s return to the workplace after traveling to specified locations – whether for business or personal travel. This includes employees staying home for a certain number of days until it is clear they do not have COVID-19.
- Allow and encourage employees to telework when possible.
- Require infection control practices, such as regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal.
- Ask an employee why they have not come to work.
However, employers may not ask employees who do not have COVID-19 symptoms to disclose whether they have a medical condition that the CDC says could make them especially vulnerable to COVID-19 complications, as this would be an improper medical inquiry.
Employers who wish to hire employees at this time may:
- Screen 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 allowing post-offer (but not pre-offer) medical inquiries and exams applies to all applicants, whether or not the applicant has a disability.
- Take an applicant’s temperature as part of a post-offer, pre-employment medical exam. However, be aware that some people with COVID-19 do not have a fever.
- Delay the start date of an applicant who has COVID-19 or symptoms associated with it. CDC has issued further guidance for various industries, which is likely to evolve as situations change. Please consult the CDC or public health authorities directly for more information.
- Withdraw job offers if it needs an applicant to start immediately, but the individual has COVID-19 or symptoms of it, as the CDC has determined the person cannot safely enter the workplace at this time.
Remember to be mindful of your employees who have disabilities unrelated to the current pandemic, who also need assistance. While it may be difficult during this time to sit down with all employees to address reasonable accommodations, employers must do their best to engage in the interactive process. Employers and employees are encouraged to use interim solutions to enable employees to keep working as much as possible.
Please note that the EEOC guidance acknowledges that direction from the public health authorities will change as the COVID-19 situation evolves. Please follow all procedures from the CDC and state/local governments while the situation develops.