Written By ESR News Blog Editor Thomas Ahearn
The U.S. Equal Employment Opportunity Commission (EEOC) – a federal agency that enforces workplace anti-discrimination laws – has updated its “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act” guidance that was created during the 2009 H1N1 swine flu pandemic to clarify exactly how the principles in the document apply to the 2019 Coronavirus (COVID-19) pandemic.
The EEOC pandemic guidance – originally issued during the spread of H1N1 virus in 2009 – was re-issued on March 19, 2020, to incorporate updates regarding the COVID-19 pandemic. Employers and employees should also follow guidance from the Centers for Disease Control and Prevention (CDC) as well as state and local public health authorities on how to protect workers, customers, clients, and the general public.
The Americans with Disabilities Act (ADA) and the Rehabilitation Act do not interfere with employers following advice from the CDC and other public health authorities on appropriate steps to take relating to the workplace. The updated pandemic guidance from the EEOC retains principles from the 2009 document but incorporates new information to respond to current employer questions.
On March 11, 2020, COVID-19 was declared a pandemic by the World Health Organization (WHO). The new information added to the EEOC pandemic guidance focuses on implementing these strategies in a manner that is consistent with the ADA and with current CDC and state and local guidance for keeping workplaces safe during the COVID-19 pandemic. The EEOC pandemic guidance answered the following questions:
- May an ADA-covered employer send employees home if they display influenza-like symptoms during a pandemic? Applying this principle to current CDC guidance on COVID-19, this means an employer can send home an employee with COVID-19 or symptoms associated with it.
- 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? Applying this principle to current CDC guidance on COVID-19, 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.
- During a pandemic, may an ADA-covered employer take its employees’ temperatures to determine whether they have a fever? 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.
- 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? Similarly, with respect to the current COVID-19 pandemic, employers may follow the advice of the CDC and state/local public health authorities regarding information needed to permit an employee’s return to the workplace after visiting a specified location, whether for business or personal reasons.
- 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? The rapid spread of COVID-19 has disrupted normal work routines and may have resulted in unexpected or increased requests for reasonable accommodation. Although employers and employees should address these requests as soon as possible, the extraordinary circumstances of the COVID-19 pandemic may result in delay in discussing requests and in providing accommodation where warranted. Employers and employees are encouraged to use interim solutions to enable employees to keep working as much as possible.
- 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. 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 allowing post-offer (but not pre-offer) medical inquiries and exams applies to all applicants, 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. CDC has issued guidance applicable to all workplaces generally, but also has issued more specific guidance for particular types of workplaces (e.g. health care employees). 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. To repeat: the ADA does not interfere with employers following recommendations of the CDC or public health authorities, and employers should feel free to do so.
- 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.
On March 27, 2020, the EEOC posted a webinar addressing questions submitted by the public about how to respond to the COVID-19 pandemic in light of federal employment nondiscrimination laws the EEOC enforces. The webinar supplements COVID-19 publications available on the EEOC website. The EEOC will monitor developments and provide assistance to the public as needed.
Coronavirus (COVID-19) is a respiratory illness that can spread from person to person. As of April 2, 2020, there are more than 950,000 total confirmed global cases of COVID-19 and the United States leads the world with more than 216,000 confirmed Coronavirus cases, according to research by the Center for Systems Science and Engineering (CSSE) at Johns Hopkins University (JHU).
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