By: Lía Fiol-Matta, Esq. and Ty Hyderally, Esq.
The Equal Employment Opportunity Commission (EEOC) enforces federal workplace anti-discrimination laws including the Americans with Disabilities Act, Pub. L. 101-336, 104 Stat. 328 (1990) (ADA) and the Rehabilitation Act, Pub. L. 93-112 (1973) (Rehab. Act), which covers instances where federal money is involved, including the requirement for reasonable accommodation and rules about medical examinations and inquiries. The ADA covers employers with 15 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations. The ADA’s nondiscrimination standards also apply to federal sector employees under section 501 of the Rehab. Act.
During this time of national crisis, due to COVID 19, both the ADA and the Rehab. Act continue to apply, subject to the guidelines of the Centers for Disease Control and Prevention (CDC) and/or other state or local governments and public health authorities, on how to most effectively slow the spread of this disease and protect workers, customers, clients, and the general public. While these guidelines are changing as the pandemic evolves, employers are required to maintain workplace safety and comply with federal antidiscrimination laws.
The ADA prohibits employers from discriminating against applicants or employees on the basis of disability. However, the ADA permits employers to exclude individuals from the workplace if they pose a direct threat to the health or safety of the public, themselves or other employees. A direct threat is defined as an individual who is a substantial risk to the health or safety of others in the workplace that cannot be alleviated or eliminated by reasonable accommodation.
On March 21, 2020, the EEOC declared that the COVID-19 pandemic meets the definition of a direct threat. The EEOC concluded that someone with COVID-19, or symptoms of it, presents a substantial risk to the workplace. This allows employers to conduct due diligence when handling COVID-19-related issues. Certain inquiries are still prohibited by law and employers must not violate statutory protections of job applicants and employees.
While a large number of states and localities have issued “stay at home” orders during the pandemic and many people are working from home, such has not been issued at the federal level and essential businesses, for the most part, have continued operating across the nation. It is necessary, therefore, for individuals to know their employment rights under this new situation we are living.
The EEOC updated its “Pandemic Preparedness in the Workplace and the Americans with Disabilities” publication on March 21, 2020 to address its application to COVID-19. (https://www.eeoc.gov/facts/pandemic_flu.html). The EEOC pandemic publication includes answers to common questions about what to do after a pandemic has been declared. Applying these principles to the COVID-19 pandemic, it is important to know the following information:
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 any pandemic, ADA-covered employers are allowed to ask employees, who call in sick, if they are experiencing symptoms of the virus. For COVID-19, these may include symptoms such as fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illness confidential in compliance with the ADA.
When may an ADA-covered employer take the body temperature of employees during the COVID-19 pandemic?
Temperature checks normally constitute an overly broad medical examination under the Americans with Disabilities Act (ADA) because the exam is not “job-related and consistent with business necessity”, as well as various state non-discrimination laws.
Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued necessary precautions, employers may measure employees’ body temperature, even though some individuals 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 virus were severe, they would be justified under the ADA standards for disability-related inquiries of employees.
May an employer screen job applicants for symptoms of COVID-19?
Yes. An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it follows the same practice for all new employees in the same type of job. This ADA rule applies regardless of 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. Although the ADA generally prohibits all pre-offer medical inquiries and exams even during a pandemic, any medical exams are permitted after an employer has made a conditional offer of employment.
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 COVID-19 or symptoms associated with it should not be in a workplace and must stay home.
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 join the worksite and must stay home; therefore, the employer may withdraw the job offer.
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