ADA-Compliant Employer Practices During the COVID-19 Pandemic
On March 19, 2020, the U.S. Equal Employment Opportunity Commission (“EEOC”) updated its 2009 guidance on Americans with Disabilities Act (“ADA”) compliance issues in the workplace during a pandemic.
The ADA applies to employers with 15 or more employees, and it prohibits disability discrimination, regulates employers’ disability and medical related practices, and requires reasonable accommodations for individuals with disabilities.
In general, the ADA prohibits an employer from making disability-related inquiries* and medical examinations* of employees except in limited circumstances. Employers cannot make disability-related inquiries or require medical examinations of job applicants before a conditional offer of employment is made. However, employers are allowed to make disability-related inquiries and require or conduct medical examinations after a conditional offer is made but before the job applicant begins working, as long as all entering employees in the same job category are subject to the same inquiry and examination. During an employee’s employment, the ADA prohibits employers from making disability-related inquiries or requesting/conducting medical examinations unless an employer has a reasonable belief, based on objective evidence, that:
An employee’s ability to perform essential job functions will be impaired by a medical condition; or
An employee will pose a direct threat due to a medical condition.
A “direct threat” is a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation. The EEOC, in its March 19th guidance, has recognized the COVID-19 pandemic as meeting the direct threat standard.
*An inquiry is "disability-related" if it is likely to elicit information about a disability.
*A "medical examination" is a procedure or test that seeks information about an individual’s physical or mental impairments or health. Measuring body temperature is considered a “medical examination” under the ADA.
Applying the above principles, the EEOC answers some of employers’ more frequently asked questions. Below are excerpts and summaries of the Q&A section of the EEOC guidance. For the full text please see: https://www.eeoc.gov/facts/pandemic_flu.html#20.
1. May an ADA-covered employer send employees home if they display influenza-like symptoms during a pandemic?
a. Yes. An employer can send home an employee with COVID-19 or symptoms associated with it because it poses a direct threat to the workplace.
2. During a pandemic, how much information may an ADA-covered employer request from employees who report feeling ill at work or who call in sick?
a. ADA-covered employers may ask such employees if they are experiencing influenza-like symptoms, such as fever or chill
and a cough or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA. b. During the COVID-19 pandemic, employers may ask employees who report feeling ill at work, or who call in sick, questions about their symptoms to determine if they have or may have COVID-19. Currently these symptoms include, for example, fever, chills, cough, shortness of breath, or sore throat.
3. During a pandemic, may an ADA-covered employer take its employees’ temperatures to determine whether they have a fever?
a. Generally, measuring an employee’s body temperature is a medical examination. However, 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. b. Employers should be aware that some people with COVID-19 do not have a fever.
4. When an employee returns from travel during a pandemic, must an employer wait until the employee develops influenza symptoms to ask questions about exposure to pandemic influenza during the trip?
a. No. 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 pandemic influenza symptoms, an employer may ask whether employees are returning from these locations, even if the travel was personal.
5. May an employer encourage employees to work remotely (i.e., work from an alternative location such as home) as an infection-control strategy during a pandemic?
a. Yes. Telework is an effective infection-control strategy that is also familiar to ADA-covered employers as a reasonable accommodation.
6. During a pandemic, may an employer require its employees to adopt infection-control practices, such regular hand washing, and require its employees to wear personal protective equipment (e.g., face masks, gloves, or gowns) at the workplace?
a. Yes. Employers may require employees to adopt infection control practices, such as regular hand washing, coughing and sneezing etiquette, and wear personal protective equipment during a pandemic. b. The costs of the protective measures should be paid by the employer absent undue hardship.
7. May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the vaccine regardless of their medical conditions or their religious beliefs during a pandemic?
a. No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII ("more than de minimis cost" to the operation of the employer’s business, which is a lower standard than under the ADA). b. Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it. However, as of the date of this writing, there is no vaccine available for COVID-19.
8. During a pandemic, must an employer continue to provide reasonable accommodations for employees with known disabilities that are unrelated to the pandemic, barring undue hardship?
a. Yes. An employer’s ADA responsibilities to individuals with disabilities continue during an influenza pandemic. b. If an employee with a disability needs the same reasonable accommodation at a telework site that he had at the workplace, the employer should provide that accommodation, absent undue hardship. In the event of undue hardship, the employer and employee should cooperate to identify an alternative reasonable accommodation.
9. During a pandemic, may an employer ask an employee why he or she has been absent from work if the employer suspects it is for a medical reason?
a. Yes. Asking why an individual did not report to work is not a disability-related inquiry. An employer is always entitled to know why an employee has not reported for work.
10. If an employer is hiring, may it screen applicants for symptoms of COVID-19?
a. 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.
11. May an employer take an applicant's temperature as part of a post-offer, pre-employment medical exam?
a. 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.
12. May an employer delay the start date of an applicant who has COVID-19 or symptoms associated with it?
a. Yes. According to current CDC guidance, an individual who has COVID-19 or symptoms associated with it should not be in the workplace.
13. May an ADA-covered employer require employees who have been away from the workplace during a pandemic to provide a doctor’s note certifying fitness to return to work?
a. 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.
EEOC’s updated guidance provides employers with helpful general information. Before making policy decisions for your company, however, employers are encouraged to consult with legal counsel about their specific circumstances and practices.
Learn more about the relevant employment law by contacting the author Thomas Kung.