On March 19, 2020, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued updated guidance materials on employers’ compliance requirements with the Americans With Disabilities Act (“ADA”) and the Rehabilitation Act as they relate to the ongoing COVID-19 pandemic. These include updates to the EEOC’s October 9, 2009 Pandemic Preparedness in the Workplace and the Americans With Disabilities Act publication that it authored during the 2009 H1N1 influenza emergency.
These updated EEOC materials defer in large part to guidance from the Centers for Disease Control (“CDC”). They note that the CDC guidance is subject to change in the face of a rapidly evolving public health emergency. The EEOC notes that it issues these guidelines following the CDC and other public health authorities’ determination that the COVID-19 outbreak meets the ADA’s “direct threat” standard. This supports the finding that a person infected with COVID-19, or related symptoms, presents a risk of substantial harm in the workplace. Whether the current COVID-19 pandemic continues to meet this standard is subject to change.
Employers should accordingly check for updates or contact counsel on a frequent basis to understand potential changes to their compliance obligations. Finally, the EEOC’s interpretations are neither official regulations nor binding law, but they may be legally persuasive in any future legal action or EEOC matter involving an employer. Further, state law may vary to require more protections for employees that should be considered based on the location of the employer (or possibly the state in which an employee works remotely).
Covered employers should nevertheless review the following quick reference to understand any revisions to their potential obligations.
Covered Employers
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The EEOC’s guidance applies to “ADA-covered employers.” These are employers with 15 or more employees, including:
- Private employers
- State and local governments
- Federal sector employees (via the Rehabilitation Act)
- Employment agencies
- Labor organizations
- Labor management committees
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Employee Health Information
| Subject |
COVID-19 Update |
Comment on Updated Guidance |
| Questions regarding employee health |
If an employee reports feeling ill at work, or calls in sick during a pandemic, covered employers may ask the employee if they are experiencing symptoms of the pandemic virus, in order to protect other employees. For COVID-19, employers may ask if employees are experiencing symptoms including:
- Fever
- Chills
- Cough
- Shortness of breath
- Sore throat
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COVID-19 related clarification to otherwise standing ADA prohibitions against employer asking existing employees disability and medical questions, with certain exceptions. |
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Body temperature checks
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Employers may measure employees’ body temperature as a precaution against the spread of COVID-19.
*Note that the EEOC cautions that not all people infected with COVID-19 have a fever. |
COVID-19 related clarification to ADA rules prohibiting required employee medical examinations, with certain exceptions. Temperature checks are otherwise considered prohibited medical examinations.
Employers should develop safe and thoughtful protocols in advance, and consult counsel, before instituting body temperature checks. |
| Confidentiality requirements |
Employers must maintain any information about an employee’s illness, from either tests or questions, in a separate, confidential medical record that complies with the ADA. |
Consistent with existing ADA rules. |
COVID-19 Related Employee Absence and Return to Work
| Subject |
COVID-19 Update |
Comment |
| Can employer require employees to stay home? |
Yes. Employers may require employees with COVID-19 symptoms to leave the workplace and/or remain at home. |
Per the EEOC’s interpretation, the ADA does not interfere with employers who follow the CDC’s advice to send symptomatic employees home. |
| Can employers require employees to provide health care providers’ notes upon return to work? |
Yes. Employers may require employees to provide health care providers’ notes certifying their fitness for duty before returning to work. These inquiries are generally allowed under the ADA. |
Health care providers may lack capacity to issue notes during the COVID-19 outbreak, so employers should consider alternative confirmation, i.e. email. |
Hiring and Recruitment
| Subject |
COVID-19 Update |
Comment |
| May employer screen applicants for COVID-19 symptoms? |
Yes. But only after making a conditional job offer. |
Employer may only screen applicants if it does so for all entering employees in the “same type of job.” Employers should consult counsel on what may constitute the same type of job. This applies whether or not the applicant has a disability. |
| May employer take an applicant’s temperature? |
Yes. An employer may take an applicant’s body temperature as part of a post-offer, pre-employment medical exam, after making a conditional job offer. |
Caution: Not all people with COVID-19 have a fever. |
| May employer delay an applicant’s start date due to COVID-19 diagnosis or symptoms? |
Yes. An employer should prevent an applicant who was diagnosed with COVID-19, or showing symptoms associated with the virus from entering the workplace. |
Pursuant to CDC COVID-19 guidance. |
| May employer withdraw an applicant’s job offer due to COVID-19 diagnosis or symptoms? |
Yes. The individual cannot safely enter the workplace, so the employer may withdraw the offer. |
Pursuant to CDC COVID-19 guidance. |
