by Teresa R. Tracy
On April 9, 2020, the Equal Employment Opportunity Commission (EEOC) issued updated Technical Assistance Questions and Answers expanding information for employers related to COVID-19, the Americans with Disabilities Act (ADA), the Rehabilitation Act, Title VII, the Age Discrimination in Employment Act (ADEA) and the Genetic Information Nondiscrimination Act. The updated document is available here.
While this summary focuses on the ADA-related issues, employers should remember that discrimination and harassment are prohibited on the basis of other protected characteristics which may in some way be implicated in COVID-19 related issues, e.g., gender, race, age, national origin.
Employers who are requesting releases in exchange for a group severance package should also remember the additional requirements for such releases if any of the affected individuals are 40 or older.
A summary of the updated information follows.
Disability-Related Inquiries and Medical Exams
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. As public health authorities and doctors learn more about COVID-19, they may expand the list of associated symptoms. Employers should rely on the CDC, other public health authorities, and reputable medical sources for guidance on emerging symptoms associated with the disease. These sources may guide employers when choosing questions to ask employees to determine whether they would pose a direct threat to health in the workplace. For example, additional symptoms beyond fever or cough may include new loss of smell or taste as well as gastrointestinal problems, such as nausea, diarrhea, and vomiting.
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.
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. Therefore, an employer can require an employee to stay home if the employee has symptoms of COVID-19.
When an employee returns to work, the ADA allows the employer to require a doctor’s note certifying fitness for duty. 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.
Confidentiality of Medical Information
The ADA requires that all medical information about a particular employee be stored separately from the employee’s personnel file, thus limiting access to this confidential information. An employer may store all medical information related to COVID-19 in existing medical files. This includes an employee’s statement that he has the disease or suspects he has the disease, or the employer’s notes or other documentation from questioning an employee about symptoms.
If the employer requires all employees to have a daily temperature check before entering the workplace, the employer may maintain a log of the results. The employer needs to maintain the confidentiality of this information
An employer may disclose the name of an employee to a public health agency when it learns that the employee has COVID-19. A temporary staffing agency or contractor may notify the employer and disclose the name of the employee that was placed in the worker’s workplace if the agency or contractor learns that the employee has COVID-19. Under these circumstances, the employee’s name may be disclosed to the employer because the employer may need to determine if this employee had contact with anyone in the workplace.
Hiring and Onboarding
An employer may screen an applicant 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. Since the ADA allows medical exams if done post-off, pre-employment, an employer may take an applicant’s temperature as part of this procedure. However, employers should be aware that some people with COVID-19 do not have a fever.
According to current CDC guidance, an individual who has COVID-19 or symptoms associated with it should not be in the workplace. Therefore, an employer may delay the start date of an applicant who as COVID-19 or symptoms associated with it. Furthermore, because current CDC guidance indicates that an individual who has COVID-19 or symptoms associated with it should not be in the workplace, an employer can withdraw a job offer when it needs the applicant to start immediately but the individual has COVID-19 or symptoms of it.
An employer cannot, however, postpone the start date or withdraw a job offer because the individual is 65 years old or pregnant, both of which place them at higher risk for COVID-19. However, an employer may choose to allow telework or to discuss with these individuals if they would like to postpone the start date.
The Job Accommodation Network (JAN) provides helpful information regarding various possible accommodations. Its materials specific to COVID-19 are here.
If a job may only be performed at the workplace, there may be reasonable accommodations that could offer protection to an individual whose disability puts him at greater risk for COVID-19 and who therefore requests such actions to eliminate possible exposure. Even with the constraints imposed by a pandemic, some accommodations may meet an employee’s needs on a temporary basis without causing undue hardship on the employer. Low-cost solutions achieved with materials already on hand or easily obtained may be effective. If not already implemented for all employees, accommodations for those who request reduced contact with others due to a disability may include changes to the work environment such as designating one-way aisles; using plexiglass, tables, or other barriers to ensure minimum distances between customers and coworkers whenever feasible per CDC guidance or other accommodations that reduce chances of exposure.
As always under the ADA, flexibility by employers and employees is important in determining if some accommodation is possible in the circumstances. Temporary job restructuring of marginal job duties, temporary transfers to a different position, or modifying a work schedule or shift assignment may also permit an individual with a disability to perform safely the essential functions of the job while reducing exposure to others in the workplace or while commuting.
Although many people feel significant stress due to the COVID-19 pandemic, employees with certain preexisting mental health conditions, for example, anxiety disorder, obsessive-compulsive disorder, or post-traumatic stress disorder, may have more difficulty handling the disruption to daily life that has accompanied the COVID-19 pandemic. Therefore, they may be entitled to a reasonable accommodation (absent undue hardship). As with any accommodation request, employers may: ask questions to determine whether the condition is a disability; discuss with the employee how the requested accommodation would assist him and enable him to keep working; explore alternative accommodations that may effectively meet his needs; and request medical documentation if needed.
If all employees are required to telework during this time, an employer should not necessarily postpone discussing a request for an employee with a disability for an accommodation that will not be needed until she returns to the workplace when mandatory telework ends. An employer may give higher priority to discussing requests for reasonable accommodations that are needed while teleworking, but the employer may begin discussing this request now. The employer may be able to acquire all the information it needs to make a decision. If a reasonable accommodation is granted, the employer also may be able to make some arrangements for the accommodation in advance.
If an employee was already receiving a reasonable accommodation prior to the COVID-19 pandemic and now requests an additional or altered accommodation, he may be entitled to one, absent undue hardship. For example, an employee who is teleworking because of the pandemic may need a different type of accommodation than what is needed in the workplace. The employer may discuss with the employee whether the same or a different disability is the basis for this new request and why an additional or altered accommodation is needed.
This article is made available for educational purposes and to provide general information on current legal topics, not to provide specific legal advice. The publication of this article does not create any attorney-client relationship and should not be used as a substitute for competent legal advice from a licensed professional attorney.
Please feel free to reach out to any attorney in our Labor & Employment Practice Group with any questions.