On March 18th, the Equal Employment Opportunity Commission (“EEOC”) issued a publication addressing ongoing legal issues for employers. Not only does this publication provide general guidance for employers, but it also provides a roadmap which employers can follow in these uncertain times, in order that employers may act in an approved manner and thus insulate against claims which affected, disgruntled employees may attempt to assert later. While the EEOC does not have jurisdiction over smaller employers (i.e. with fewer than 15 employees), the guidance nonetheless provides those smaller employers with helpful information as well. Additionally, all employers need to be mindful of state and local rules regulations which may apply in addition to those at the federal level as addressed by the EEOC.
The EEOC’s full guidance is accessible at this link: https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm
In turn, within this newest publication, the EEOC provides sub-links to other materials relevant to COVID-19 concerns for employers, including for example links to CDC guidelines and to prior EEOC guidance on Pandemic Preparedness (issued in 2009).
From the EEOC’s guidance, the following questions and answers should be particularly instructive to employers who are struggling with COVID-19 issues day-to-day within their operations:
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1. 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 emplyee illness as a confidential medical record in compliance with the ADA.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
If you have any questions regarding EEOC guidelines or other Labor and Employment issues, please do not hesitate to contact Bill Tarnow or your Neal Gerber Eisenberg attorney.