Employers are navigating a quickly changing landscape of rules since coronavirus disease 2019 (COVID-19) was declared a pandemic. One big question on everyone’s mind right now is, “What may employers do to keep the workplace safe while complying with the Americans with Disabilities Act (ADA)?”
Last week, the Equal Employment Opportunity Commission (EEOC) updated its guidance on the topic to expressly address COVID-19. It covers a host of questions about handling employees who have or may have been exposed to coronavirus.
The COVID-19 pandemic meets the “direct threat” standard that triggers exceptions to ADA’s prohibitions and limitations on disability-related inquiries and medical examinations. For example, during this COVID-19 pandemic, an ADA-covered employer may:
- Send home employees with COVID-19 or symptoms associated with COVID-19.
- Question employees who report feeling ill at work or who call in sick about their symptoms to determine if they may have COVID-19. Currently, the EEOC provides example symptoms to include fever, chills, cough, shortness of breath, or sore throat.
- Measure employees’ body temperature. The agency cautions, however, that some people with COVID-19 do not have a fever. In addition, some people with a fever do not have COVID-19. As with all medical information, the fact that an employee has a fever or other symptoms would be subject to ADA confidentiality requirements.
- The Center for Disease Control (CDC) and state and local public health authorities have recommended that travelers returning from specified locations remain at home for a specified period of time until it is clear they have not contracted COVID-19. Employers may follow the advice of CDC or the relevant public health authorities regarding information needed to permit an employee’s return to the workplace after travel to such locations, whether for business or personal reasons.
- Require employees to telework, to adopt infection-control practices, and to wear personal protective equipment.
-
Ask absent employees why they are absent and when they will return to work, if the employer suspects that employee is ill.
The EEOC has also added new guidance on hiring during the COVID-19 pandemic. During the pandemic, the employer may:
- Screen job applicants for symptoms of COVID-19 after making a conditional job offer so long as the employer does so of all applicants for the same type of job.
- Take an applicant’s temperature as part of a post-offer, pre-employment medical examination.
- May delay the start date of an applicant who has COVID-19 or symptoms associated with it because the CDC currently has determined that such individuals cannot safely enter the workplace.
-
May withdraw a job offer when the employer needs the applicant to start immediately, but the individual has COVID-19 or symptoms associated with it because the CDC currently has determined that such individuals cannot safely enter the workplace.
Employers should also note that the CDC and public health authorities have issued more specific guidance for various types of workplaces, which should be followed. The CDC and state and local public health authorities’ guidance are evolving with this pandemic. Employers should check regularly for the most current information. The entire updated EEOC publication entitled "Pandemic Preparedness in the Workplace and the Americans with Disabilities Act" is available on the EEOC website here.
Hurwitz & Fine continues to monitor and analyze these updates and advise employers on matters related to the coronavirus outbreak. Please contact any member of the firm’s Employment Practices team for guidance on this evolving issue at 716-849-8900 or visit our website at www.hurwitzfine.com
