Articles

COVID-19

April, 2020

EEOC Guidance on Workplace Practices with COVID-19

            The U.S. Equal Employment Opportunity Commission, (EEOC) has issued information and guidance as to the enforcement of the Americans with Disabilities Act, (ADA), and the federal Rehabilitation Act in the wake of the Corona Virus, COVID-19, effective March 19, 2020.  Such information includes the requirement for reasonable accommodation and the rules about medical examinations and employer inquiries in the face of this pandemic.

            The EEOC advises that even as likely it is to change as this virus evolves, employers should continue to follow the most current information on maintaining workplace safety from public health authorities.

• How much information may an employer request from an employee who calls in sick, in order to protect the rest of the 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 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?

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 precautions, the EEOC is stating that employers may measure an employee’s body temperature.  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 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 were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees.  However, as a practical matter, since doctors and other health professionals may not be available or too busy to issue such notes, the EEOC suggests employers adopt other means of medical certification, such as forms, stamps or emails indicating an employee does not have the 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, if it does so for all entering employees in the same type of job.  This ADA rule applies whether the applicant has a disability.

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

Yes.  A medical exam is 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 symptoms associated with the virus 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.