Temperatures, medical questions and how the ADA intersects with public safety
Most employers know that they should steer clear of asking employees certain medical questions to avoid overstepping the Americans with Disabilities Act (ADA). Yet, the coronavirus pandemic has put employers in the undesirable position of trying to assess whether employees are coming to work with a fever, chills, cough, shortness of breath, or a sore throat – the telltale symptoms of the coronavirus. In fact, some government and public health officials are encouraging employers to take temperatures and ask seemingly medical related questions.
So, what’s an employer to do? The EEOC has stepped in to provide some guidance in: “What You Should Know About the ADA, the Rehabilitation Act, and COVID-19”
Here are some of the EEOC’s key insights:
The EEOC publication provides guidance on how employers can balance the requirements of the ADA with the CDC and state/local public health pronouncements. The EEOC specifically notes that the ADA does not interfere with or prevent employers from following the CDC’s and state/local public health authorities’ guidelines and suggestions about steps employers should take to contain COVID-19.
However, the EEOC notes that employers should remember that guidance from public health authorities is likely to change as the COVID-19 pandemic evolves. Therefore, employers should continue to follow the most current information on maintaining workplace safety.
The EEOC also refers employers to its broader Pandemic Publication prepared in response to earlier flu pandemics that includes questions and answers for employers struggling to deal with this situation. Some of the EEOC’s guidance follows below:
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.
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.
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.
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 influenza were 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.
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.
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.
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.
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.
Employers can also review the section of the EEOC’s Pandemic Publication for additional information.
McDonald Hopkins will continue to closely monitor the COVID-19 pandemic and its impact on employers. Should you need additional information, assistance or guidance of any kind, our team of McDonald Hopkins attorneys is available to assist your organization.