On March 11, 2020, the World Health Organization declared the coronavirus disease (COVID-19) to be a pandemic. This LR What You Need to Know Now update will answer questions related to employee rights under the Americans with Disabilities Act (ADA) during the COVID-19 pandemic, based on excerpts from recently updated U.S. Equal Employment Opportunity Commission (EEOC) guidance. These ADA principles apply in the context of a pandemic only.
Current Employees and Medical Screening: COVID-19 is a “Direct Threat” According to the EEOC
The COVID-19 pandemic meets the EEOC’s direct threat standard, meaning that a significant risk of substantial harm would be posed by having someone with COVID-19, or symptoms of it, present at the workplace now. Because of the direct threat, the EEOC has determined the following principles apply to ADA covered employers (employers with at least 15 employees):
Can your employer send you home if you display influenza-like symptoms during the COVID-19 pandemic?
Yes. The CDC states that employees who become ill with symptoms of COVID-19 illness at work during the pandemic should leave the workplace. An employer can send home an employee with COVID-19 or symptoms associated with it.
During the COVID-19 pandemic, how much information can your employer request from employees who report feeling ill at work or who call in sick?
ADA-covered employers may ask such employees if they are experiencing influenza-like symptoms, such as fever or chills and a cough or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.
During the COVID-19 pandemic, can your employer take your temperature to determine whether you have a fever?
Yes. Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions as of March 2020, employers may measure employees’ body temperature. As with all medical information, the fact that an employee had a fever or other symptoms would be subject to ADA confidentiality requirements.
Can your employer ask you about symptoms about your exposure to COVID-19 when you return from travel during the pandemic?
Yes. These would not be disability-related inquiries. If the CDC or state or local public health officials recommend that people who visit specified locations remain at home for several days until it is clear they do not have COVID-19 symptoms, an employer may ask whether employees are returning from these locations, even if the travel was personal.
During the COVID-19 pandemic, can your employer require its employees to adopt infection-control practices, such as regular hand washing, at the workplace?
Yes. Requiring infection control practices, such as regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal, does not implicate the ADA.
During the COVID-19 pandemic, can your employer require you to wear personal protective equipment (e.g., face masks, gloves, or gowns) designed to reduce the transmission of pandemic infection?
Yes. An employer may require employees to wear personal protective equipment during a pandemic. However, where an employee with a disability needs a related reasonable accommodation under the ADA (e.g., non-latex gloves, or gowns designed for individuals who use wheelchairs), the employer should provide these, absent undue hardship.
Getting a New Job During the COVID-19 Pandemic ?
Generally, the ADA limits an employer’s freedom to make medical inquiries or require medical exams prior to a conditional offer of employment, but read on to see what your prospective employer can ask you during the COVID-19 pandemic.
Can your new employer 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.
Can your employer take your 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.
Can your employer delay your start date if you have 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.
CDC has issued guidance applicable to all workplaces generally, but also has issued more specific guidance for particular types of workplaces (e.g. health care employees). Guidance from public health authorities is likely to change as the COVID-19 pandemic evolves. Therefore, employers should continue to follow the most current information on maintaining workplace safety.
Can an employer withdraw a job offer when it needs you to start immediately but you have COVID-19 or symptoms of it?
Yes. Based on current CDC guidance, this individual cannot safely enter the workplace, and therefore the employer may withdraw the job offer.