The EEOC, ADA, and COVID-19

As employers continue to grapple with the added pressures that coronavirus places on the American workforce, the Equal Employment Opportunity Commission (EEOC) has issued additional guidance to help ADA-covered employers stay compliant with regulations. This guidance focuses on the legal restrictions and regulations that employers must adhere to as they attempt to halt the spread of coronavirus in the workplace. In the age of COVID-19, the EEOC and the ADA are committed to continuing to protect employees from discrimination in the workplace while ensuring that its enforcement does not interfere with or prevent employers from following CDC guidelines to halt the spread of the virus. Here are answers to some commonly asked questions about how COVID-19 is impacting EEOC and ADA regulations.

Can I screen applicants and new hires for symptoms of COVID-19?

Whether or not the applicant has a disability, employers are permitted to screen potential applicants for symptoms of COVID-19 only after making a conditional job offer. Employers may only screen applicants if all applicants or new hires in the same type of job are also being screened.

Can I take an applicant’s temperature as part of a post-offer, pre-employment medical exam?

Medical exams as part of a conditional offer of employment are permitted by the ADA. Employers should be aware, however, that not all people with coronavirus experience fever symptoms.

If a new hire has or displays symptoms of COVID-19, can I delay their start date or withdraw a job offer?

Since current CDC guidelines state that individuals who have COVID-19 or symptoms associated with the virus should not be in the workplace, employers are permitted to delay the start date of these workers. Additionally, employers may elect to withdraw conditional offers of employment to individuals who have or display symptoms of COVID-19.

Can I take an existing employee’s body temperature?

Due to CDC guidance and state and local health authorities’ acknowledgment of the community spread of coronavirus, the ADA permits employers to take the body temperature of employees on an as-needed basis. Employers should consider that not all persons with coronavirus are symptomatic or have a fever.

Can I send employees home if they display flu-like symptoms during a pandemic?

The ADA permits employers to send employees who are displaying flu-like symptoms home from work during a pandemic. Since these flu-like symptoms are serious enough to pose a direct threat, requesting that these workers leave the workplace is not a disability-related action and, therefore, not a violation of ADA regulations.

How much information can I request from an employee who calls in sick?

Due to the current coronavirus pandemic, employers may ask employees if they are experiencing any symptoms of the virus. These symptoms can include fever, chills, sore throat, cough, or shortness of breath. When gathering information from employees during the pandemic, employers must maintain the information as a confidential medical record in compliance with existing ADA regulations.

Can I require a sick employee to submit a doctor’s note certifying their fitness to return to work?

As discussed in Families First Coronavirus Response Act FAQs, under the ADAs current guidance on the pandemic, employers are permitted to request a doctor’s note certifying that an employee who had been out due to coronavirus is physically fit to return to work. Employers should be prepared to be flexible when requesting a note, especially as doctor’s offices close to patients and ER facilities become overwhelmed with patients.

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As the coronavirus situation continues to evolve, ensuring that your policies and procedures are compliant with updated employment laws is vital. Sheakley’s Professional Employer Organization (PEO) experts will continue to provide important updates as they are known.

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