On March 19, 2020, the United States Equal Employment Opportunity Commission (EEOC) issued guidance for employers on responding to legal concerns under the Americans with Disabilities Act (ADA) arising out the COVID-19 (Coronavirus) pandemic. The guidance, What You Should Know about the ADA, the Rehabilitation Act, and COVID-19, addresses employer concerns about what medical inquiries an employer can make, when an employer can ask employees to leave the workplace based on such concerns, and under what conditions an employer can ask for a doctor’s release from such employees before allowing them to return. Among the key elements of the guidance are the following:
- Employers covered by the ADA, generally, consisting of those with 15 or more employees, may ask employees if they are experiencing influenza-like symptoms, such as fever or chills and a cough or sore throat, if employees call in sick or report feeling ill at work. Employers must still maintain all information about employee illness as a confidential medical record.
- Employers may measure an employees’ body temperature, even though that is technically a “medical exam” under the ADA, but employers should be aware that some people with COVID-19 do not have a fever. Employers may also take the temperature of a job applicant if they have been made a conditional offer of employment.
- Employers may require doctors’ notes from returning employees certifying their fitness to work. However, the EEOC notes that because health care professionals may be too busy to prepare fitness for duty documentation for all such employees, new approaches may be necessary, such as reliance on local clinics to provide a form or an e-mail to certify that an individual does not have the pandemic virus.
- 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.
- An employer may delay the start date of an applicant who has COVID-19 or symptoms associated with it, because such an individual should not be in the workplace under current CDC guidance.
- An employer may withdraw a job offer when it needs the applicant to start immediately but the individual has COVID-19 or symptoms of it, because such an individual cannot safely enter the workplace.
The EEOC’s guidance follows its earlier publication issued during the H1N1 pandemic, Pandemic Preparedness in the Workplace and the Americans With Disabilities Act. The guidance is not intended to answer all of an employer’s questions regarding compliance with the ADA during this fast-moving pandemic, but should serve as a good starting point for creating effective and legally-compliant policies at the present time.