On March 17, 2020, the Equal Employment Opportunity Commission (EEOC) posted an article on its website, “What You Should Know About the ADA, the Rehabilitation Act, and COVID-19.” The article confirms that workplace anti-discrimination laws enforced by the EEOC remain applicable, but that nothing in those laws interferes with or prevents “employers from following the guidelines and suggestions made by the CDC or state/local public health authorities about steps employers should take regarding COVID-19.”
In addition, the article provides a link to guidance the EEOC published in 2009 in response to the H1N1 outbreak: Pandemic Preparedness in the Workplace and the Americans With Disabilities Act (“2009 Guidance”), which remains relevant. The 2009 Guidance contains frequently asked questions (“FAQs”), which are answered by reference to established ADA and Rehabilitation Act principles and includes a separate FAQ section addressing what to do after a pandemic has been declared, including:
- 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, ADA-covered employers 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 considered 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?
- 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?
- 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.
The EEOC’s article serves as a reminder that even in an evolving and challenging pandemic emergency, the principles underlying nondiscrimination in the workplace remain constant.