Americans With Disabilities Act (ADA)
The Americans With Disabilities Act (“ADA”) and the Rehabilitation Act are both forms of federal equal employment opportunity laws that are particularly impacted by COVID-19. The Equal Employment Opportunity Commission (“EEOC”) enforces workplace anti-discrimination laws, including the ADA and the Rehabilitation Act. The ADA and Rehabilitation Act rules continue to apply, but they do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state and local public health authorities about steps employers should take regarding COVID-19. The EEOC has provided the following guidance for employers related to the ADA and the Rehabilitation Act:
How much information may an employer request from an employee who calls in sick, in order to protect the rest of its workplace 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. Please note, however, that some people with COVID-19 may not have a fever.
Does the ADA allow employers to require employees to stay home if they have symptoms of 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 or duty?
Yes. Such inquiries are permitted under the ADA either because they would not be disability-related, or, if the pandemic were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees.
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. However, please note that inquiring into “conditions” (e.g., “Do you have COVID-19?”) may be prohibited under the ADA, while merely inquiring about “symptoms” is permissible.
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. Please note, however, that some people with COVID-19 may not have a fever.
May an employer delay the start date of an applicant who has COVID-10 or symptoms associated with the virus?
Yes. According to current CDC guidelines, an individual who has COVID-19 or symptoms associated with the virus 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 related to it?
Based on current CDC guidance, this individual cannot safely enter the workplace, and, therefore, the employer may withdraw the job offer.
For more information, please visit the EEOC website.