EEOC Updates Prior ADA and Rehabilitation Act Guidance to Account for Coronavirus Pandemic

March 17, 2020Alerts

On March 17 and again on March 18, 2020, the Equal Employment Opportunity Commission (EEOC) updated its ADA and Rehabilitation Act guidance to clarify, in combination, the following eight issues:

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 [illness] is 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.

See EEOC, What You Should Know About the ADA, the Rehabilitation Act, and COVID-19 (May 7, 2020).

Important: Employers should note that the EEOC’s coronavirus guidance has changed significantly from its initial guidance, issued March 5, 2020. Now that the World Health Organization has declared the coronavirus to be a global pandemic, employers in the United States are allowed to take the steps outlined above to protect their employees and customers without violating the ADA or Rehabilitation Act. The EEOC’s prior guidance did not answer the first four questions directly. Thus, blog posts or articles concerning the EEOC’s guidance that were written between March 5, 2020, and March 17, 2020, are likely out of date and inaccurate.

Also important: The EEOC’s current coronavirus guidance has been posted to the same web address as its March 5, 2020 guidance. Older blog posts that discuss the March 5, 2020 guidance will now link to the current guidance. This could easily cause confusion. Likewise, if you have visited the EEOC’s prior guidance, your web browser might open a cached, i.e., outdated, version of the page when you attempt to access it again. To prevent this, either press the “F5” key on your keyboard or click the reload icon on your browser to force the current version of the page to reload. This will ensure that you are viewing the EEOC’s most up-to-date guidance.