During the prior H1N1 outbreak, the EEOC provided guidance in a publication entitled “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act.” (1)
Since the middle of March, the Equal Employment Opportunity Commission (“EEOC”) has been rolling out guidance specific to COVID-19 and the Americans with Disabilities Act (“ADA”), the Rehabilitation Act and other Equal Employment Opportunity (“EEO”) laws. The latest update was made April 23, 2020. (2)
The COVID-19 updates cover seven (7) main areas:
- Disability-Related Inquiries and Medical Exams
- Confidentiality of Medical Information;
- Hiring and Onboarding;
- Reasonable Accommodation;
- Pandemic-Related Harassment Due to National Origin, Race or other protected characteristics;
- Furloughs and Layoffs;
- Return to Work.
While EEO laws continue to apply during the COVID-19 pandemic, generally speaking, an employer is provided far greater leeway due to the fact that an individual with the virus poses a direct threat to the health of others.
Pursuant to the guidance, during a pandemic an ADA covered employer may ask employees if they are experiencing symptoms of the pandemic virus, in this instance, COVID-19, including, but not necessarily limited to fever, chills, cough, shortness of breath or sore throat. This information though must be kept as a confidential medical record in compliance with the ADA.
Since CDC and state/local health authorities have acknowledged community spread of COVID-19, employers may measure employees’ body temperature. If an employee is experiencing symptoms of COVID-19 an employer can require that employee to leave the workplace.
When employees return to work after being sick with COVID-19, an employer may also require a doctor’s note certifying fitness for duty.
An employer must confidentially maintain medical information regarding its employees, but an employer may disclose to a public health agency the name of an employee when it learns that the employee has COVID-19.
The EEOC issued guidance on April 23, 2020 specific to medical testing which explained that under the ADA standard that any mandatory medical testing be “job related and consistent with business necessity,” an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus because any individual with the virus poses a direct threat to the health of others.
In addition, if hiring new employees, an employer can also, (1) screen employees for symptoms of COVID-19, (2) take an applicant’s temperature as part of a post-offer or pre-employer medical exam; (3) delay a start date an applicant who has symptoms or (4) even withdraw an offer of employment if the individual has COVID-19 or symptoms of it.
An employer, may not, however, postpone the start date or withdraw an offer because an individual may be at a higher risk of contracting COVID-19. This is a significant difference. An employer has the ability to protect its workplace, and other employees to exposure of COVID-19, but cannot discriminate against protected employees just because they MAY contract or because they are at a higher risk of contracting COVID-19.
In the context of preexisting disabilities, the pandemic does not change an employer’s obligations, but it may change whether a reasonable accommodation constitutes an undue hardship. Flexibility by employers and employees is important to determine whether any particular accommodation is possible under the circumstances.
During the pandemic, if an employee requests a reasonable accommodation, regardless of whether or not that employee is working at home or in the workplace, the employer may still request information from the employee to determine if the condition is a disability and inquire why an accommodation is needed.
Given the fluidity of the pandemic, it is also important to keep in mind that an employee’s needs for accommodations may change or may only be short-term and an employer may wish to place an end date on an accommodation and choose to revisit the needs of an employee.
As always, an employer does not have to provide a particular reasonable accommodation if it poses an “undue hardship” on the employer, that is a “significant difficulty or expense.” Certain accommodations that may have not presented an undue hardship previously, may now cause an undue hardship because of various difficulties of the pandemic.
As states begin discussions regarding return to work, the most indiscriminate manner for employers to screen employees entering the workplace will be through the use of testing. However, it remains unclear what the availability of testing will be. Without readily available testing, employers can rely on CDC and public health authority information to determine whether an employee’s medical condition would pose a direct threat to health or safety.
It would seem to me that relying on CDC and public health authority information may cause an employer to perceive employees as having COVID-19 when they do not as so many of the symptoms overlap with other illnesses or disabilities that do not pose a direct threat to health or safety. Burger Law Group PLLC will continue following this developing situation and is available to answer questions. Please contact us by telephone or at firstname.lastname@example.org to set up an initial consultation.