What Employers Should Know About the ADA, the Rehabilitation Act, and COVID-19
March 19, 2020
On March 17, 2020, the EEOC finally released updated guidance on how to navigate the ADA now that spread of the coronavirus/COVID-19 has been declared a pandemic (What You Should Know About the ADA, the Rehabilitation Act, and COVID-19). It answers a number of key questions employers have had in the last two weeks, including if they can take an employee’s temperature and what questions they may ask employees about COVID-19 exposure or symptoms. The follow is a summary of the EEOC’s guidance, as well as our recommendations regarding some of that advice: During a pandemic, employers may ask employees if they are experiencing symptoms of coronavirus, including fever, chills, cough, shortness of breath, or sore throat. Employers must continue to maintain all information about employee illness, including COVID-19 illness, as a confidential medical record in compliance with the ADA.While measuring an employee’s body temperature is generally considered a medical examination, because the CDC and state/local health authorities have acknowledged community spread of the virus and issued recommended precautions, which may include taking an employee’s temperature, the EEOC advises that employers may now measure employees’ body temperature, but should be aware that some people with coronavirus do not have a fever.The CDC has indicated that employees who become ill with symptoms of coronavirus should leave the workplace. The EEOC has indicated that the ADA does not prohibit employers from following this advice.When employees who have been out for COVID-19 health related reasons return to work, employers are allowed to require doctors’ notes certifying their fitness for duty. However, as a practical matter, the healthcare system is likely to be overwhelmed during the COVID-19 pandemic and employees may be unable to procure the typical fitness for duty documentation employers would normally ask a returning employee to provide. As a result, the EEOC recommends that employers be flexible and consider accepting “a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus.” It is also worth noting that the CDC has asked employers to not require such a note, for the same reasons the EEOC cites. Employers confronted with this question should attempt to treat returning employees consistently. However, depending on an employee’s reason for leave and his/her healthcare provider’s willingness or capacity to provide information, employers may need to be flexible and work with the individual employee to get confirmation of fitness for duty in a practical and efficient way.We are actively monitor this ongoing situation and will continue to provide updates as things change.