Yesterday, the EEOC updated its March pandemic guidance for employers responding to a myriad of issues. It added more questions to its Q&A section confirming that employers may ask COVID-related questions, but you must remember to keep records confidential as medical records. Here are some of the most salient issues:
A. 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.
A.2.
When screening employees entering the workplace during this time, may an
employer only ask employees about the COVID-19 symptoms EEOC has identified as examples, or may it ask about any symptoms
identified by public health authorities as associated with COVID-19?
(4/9/20)
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.
A.3. When
may an ADA-covered employer take the body temperature of employees during the
COVID-19 pandemic? (3/17/20)
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.
A.4. Does
the ADA allow employers to require employees to stay home if they have symptoms
of the COVID-19? (3/17/20)
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.
A.5. When employees return to work, does the ADA allow employers to require
a doctor's note certifying fitness for duty? (3/17/20)
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.
B. Confidentiality of Medical Information
B.1.
May an employer store in existing medical files information it obtains related
to COVID-19, including the results of taking an employee's temperature or the
employee's self-identification as having this disease, or must the employer
create a new medical file system solely for this information? (4/9/20)
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.
B.2.
If an employer requires all employees to have a daily temperature check before
entering the workplace, may the employer maintain a log of the results? (4/9/20)
Yes.
The employer needs to maintain the confidentiality of this information.
B.3.
May an employer disclose the name of an employee to a public health agency when
it learns that the employee has COVID-19? (4/9/20)
Yes.
B.4.
May a temporary staffing agency or a contractor that places an employee in an
employer's workplace notify the employer if it learns the employee has
COVID-19? (4/9/20)
Yes.
The staffing agency or contractor may notify the employer and disclose the name
of the employee, because the employer may need to determine if this employee
had contact with anyone in the workplace.
C. Hiring and Onboarding
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.
C.2. May an employer take an applicant's temperature as part of a
post-offer, pre-employment medical exam? (3/18/20)
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.
C.3. May an employer delay the start date of an applicant
who has COVID-19 or symptoms associated with it?
(3/18/20)
Yes.
According to current CDC guidance, an individual who has COVID-19 or symptoms
associated with it should not be in the workplace.
C.4. 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? (3/18/20)
Based on
current CDC guidance, this individual cannot safely enter the workplace, and
therefore the employer may withdraw the job offer.
C.5.
May an employer 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 from
COVID-19? (4/9/20)
No.
The fact that the CDC has identified those who are 65 or older, or pregnant
women, as being at greater risk does not justify unilaterally postponing the
start date or withdrawing a job offer. However, an employer may choose to
allow telework or to discuss with these individuals if they would like to
postpone the start date.
D. Reasonable Accommodation
In
discussing accommodation requests, employers and employees may find it helpful
to consult the Job Accommodation Network (JAN) website for types of
accommodations, www.askjan.org. JAN's materials specific to
COVID-19 are at https://askjan.org/topics/COVID-19.cfm.
D.1.
If a job may only be performed at the workplace, are there reasonable accommodations for individuals with disabilities absent
undue hardship that could offer protection to an
employee who, due to a preexisting disability, is at higher risk from COVID-19?
(4/9/20)
There may
be reasonable accommodations that could offer protection to an individual whose
disability puts him at greater risk from 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.
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.
D.2.
If an employee has a preexisting mental illness or disorder that has been
exacerbated by the COVID-19 pandemic, may he now be entitled to a reasonable
accommodation (absent undue hardship)? (4/9/20)
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.
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.
D.3.
In a workplace where all employees are required to telework during this time,
should an employer postpone discussing a request from an employee with a
disability for an accommodation that will not be needed until he returns to the
workplace when mandatory telework ends? (4/9/20)
Not
necessarily. 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.
D.4. What
if an employee was already receiving a reasonable accommodation prior to the
COVID-19 pandemic and now requests an additional or altered accommodation? (4/9/20)
An
employee who was already receiving a reasonable accommodation prior to the
COVID-19 pandemic may be entitled to an additional or altered accommodation,
absent undue hardship. For example, an employee who is teleworking
because of the pandemic may need a different type of accommodation than what he
uses 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.
NOTICE: This summary is designed merely to
inform and alert you of recent legal developments. It does not constitute legal
advice and does not apply to any particular situation because different facts
could lead to different results. Information here can change or be amended
without notice. Readers should not act upon this information without legal
advice. If you have any questions about anything you have read, you should
consult with or retain an employment attorney.
