New EEOC guidance on the COVID-19 pandemic - UPDATED

UPDATED March 18, 2020.

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.

UPDATE: On March 18, the EEOC added more Q and A to the above. Here are the new questions and answers:

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, as long as it does so for all entering employees in the same type of job. This ADA rule applies whether or not the applicant has a disability.  

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

Yes. Any medical exams are 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 COVID-19 or symptoms associated with it 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.

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. Please feel free to visit Constangy's Coronavirus Resource Center, and always consult with your employment counsel.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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