As the COVID-19 pandemic continues to affect the nation, many employers have been forced to adjust their regular workplace policies to address public health concerns. While most employers have shifted to working remotely, some essential employers remain open for business. Given the contagiousness of COVID-19, a single cough is enough to concern nearby individuals. Yet, existing discrimination laws have raised questions about the extent that managers can make inquiries of symptomatic employees. Recently, the United States Equal Employment Opportunity Commission (EEOC) updated its guidance on the Americans with Disabilities Act (ADA), specifically addressing COVID-19. The EEOC initially issued this guidance in 2009 to help employers navigate the ADA during the H1N1 Influenza outbreak. Now, the guidance contains updated sections with specific examples related to COVID-19 symptoms and concerns.
The ADA generally prohibits employers from making disability-related inquiries and requiring employees to undergo medical examinations unless they are job-related and consistent with business necessity. One way to illustrate business necessity is if an employee’s condition poses a direct threat to the workplace. A direct threat is defined as a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation. In its updated guidance, the EEOC states that the COVID-19 pandemic currently meets the direct threat standard, which means that employers are permitted to make COVID-19 related inquiries or require employees to undergo COVID-19 testing. However, the EEOC notes that this assessment may change as the spread and severity of COVID-19 changes, meaning that the direct threat exception may not be applicable in the future.
The EEOC has also published a COVID-19 Q&A which overlaps with its updated guidance, which provides valuable information for employers. Specifically, it states that employers may ask employees who call in sick about COVID-19 symptoms, such as fever, chills, cough, shortness of breath, or sore throat. Under the ADA, any information received must be kept confidential in the employee’s medical record. Notably, employers may also require symptomatic employees to stay home.
Employers are also allowed to take the body temperature of employees during the COVID-19 outbreak, even though this would typically be considered a medical examination, as a result of the direct threat exception. Employers may also take the body temperature of individuals who have received a conditional offer of employment, as part of a post-offer, pre-employment medical exam. If such individuals show COVID-19 symptoms, the employer would be allowed to delay the start date of employment, or withdraw the job offer altogether.
Where an employee has been out of work or working from home because he or she has COVID-19 symptoms, the employer may require a doctor’s note to certify that the employee is fit for duty, before allowing the employee to return to the workplace. However, the EEOC notes that, as a practical matter, health care professionals may be too busy to provide such documentation. Thus, employers may want to consider alternate methods, such as relying on a local clinic, or accepting such information via email.
We will continue to post updates about the rapidly changing employment law landscape during the COVID-19 pandemic.