COVID-19 and the ADA
Workplaces that remain up and running during the current pandemic, including our reliable nuclear generation facilities, are rightly concerned about COVID-19 infected employees spreading the infection to coworkers. This same concern has arisen in many other industry sectors, most notably health care, where stricken workers might infect not only their coworkers but also vulnerable patients.
A question that arises is whether the Americans with Disabilities Act, which generally prohibits medical examinations, allows employers during a pandemic to take
measures to mitigate the risk of workplace virus spread, such as asking employees for information on whether they have had flu-like symptoms or a fever, or even taking employees’ temperatures when they arrive to work.
The EEOC issued guidance on the ADA and pandemics in 2009 in response to the H1N1 virus. Pandemic Preparedness in the Workplace and the Americans with Disabilities Act (Oct. 9, 2009). That technical assistance document provides this overarching guidance to employers:
During a pandemic, employers should rely on the latest CDC and state or local public health assessments. While the EEOC recognizes that public health recommendations may change during a crisis and differ between states, employers are expected to make their best efforts to obtain public health advice that is contemporaneous and appropriate for their location, and to make reasonable assessments of conditions in their workplace based on this information.
Pandemic Preparedness poses and answers several questions about the ADA during a pandemic. In more recent guidance, What you should know about the ADA, the Rehabilitation Act, and COVID-19. (Mar. 18, 2020), the EEOC applied its 2009 guidelines to the current COVID-19 pandemic. You may find these Q&A's from that guidance helpful.
1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
If you have additional questions about the application of the ADA in these difficult circumstances, please feel free to contact us.
This summary is provided as an informational tool. It is not intended to be and should not be considered legal advice, and receipt of this information does not establish an attorney-client relationship.