The global impact of COVID-19 has led to many questions about ensuring workplace safety while also complying with anti-discrimination law. The Equal Employment Opportunity Commission (EEOC) has offered guidance on such topics with a publication entitled Pandemic Preparedness in the Workplace and the Americans with Disabilities Act. Some of the more important answers to frequently asked questions include the following:
- May an employer send employees home if they display influenza-like symptoms during a pandemic?
- Yes. Advising workers to go home if they show symptoms of COVID-19 is not a “disability-related action” that violates the Americans with Disabilities Act (ADA).
- How much information may an employer request from employees who report feeling ill at work or who call in sick?
- Employers may ask 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.
- May an employer take its employees’ temperatures to determine whether they have a fever?
- The EEOC has stated that the ADA permits employers to make disability-related inquiries and conduct medical exams “if job-related and consistent with business necessity.” Inquiries and reliable medical exams meet this standard if it is necessary to exclude employees with a medical condition that would pose a “direct threat” to health or safety.
- However, employers should be aware that some people with influenza, including COVID-19, do not have a fever. As with all medical information, the fact that an employee had a fever or other symptoms would be subject to ADA confidentiality requirements.
- Despite EEOC guidance, public employers should speak to legal counsel before taking employees’ temperatures to discuss potential liability issues.
- May an employer ask employees who do not have influenza symptoms to disclose whether they have a medical condition that the CDC says could make them especially vulnerable to influenza complications?
- No. The ADA prohibits making disability-related inquiries or requiring medical examinations of employees without symptoms. Employers may ask employees who voluntarily disclose their disabilities what accommodations they believe they need. Employers must keep such information confidential.
- Employers should not assume that all disabilities increase the risk of COVID-19 complications. Many disabilities do not increase this risk (e.g. vision or mobility disabilities).
This update is not intended to constitute legal advice or form an attorney-client relationship. If you have any questions, we encourage you to contact an attorney at Mazanec, Raskin & Ryder to help address your specific circumstances.