How to keep your workplace safe without violating the ADA.
The Equal Employment Opportunity Commission has issued guidance titled “What You Should Know About the ADA, the Rehabilitation Act, and COVID-19.” In this new guidance, the EEOC directs employers to its 2009 publication on pandemic preparedness in the workplace. Based on its 2009 guidance, the EEOC provides answers to four common questions related to COVID-19 (quoted verbatim):
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, [employers covered by the Americans with Disabilities Act] 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 CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees' 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 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.
Although the EEOC guidance provides additional clarity under the ADA, employers should keep in mind that it does not negate a company’s obligations to comply with state or local laws that may be more restrictive. If you have any questions during this constantly evolving situation, please contact the Constangy attorney of your choice.
NOTE TO READERS: Please be aware that changes in governmental guidance, and even in the underlying laws, are occurring on almost a daily basis, which will affect the analysis of the legal issues related to COVID-19. It is critical that employers stay current.
