On March 18, 2020, the Equal Employment Opportunity Commission  issued new guidance regarding the effect of the COVID-19 pandemic on employers’ obligations not to discriminate against and to provide reasonable accommodations to disabled employees under the Americans with Disabilities Act and the Rehabilitation Act.  The guidance states that, while employers must continue to comply with the ADA and the Rehabilitation Act, those laws do not interfere with or prevent employers from following the guidelines and suggestions from the Centers for Diseases Control and Prevention or state or local authorities relating to COVID-19.

The EEOC guidance also directs employers to its 2009 publication “Pandemic Preparedness in the Workplace and the Americans With Disabilities Act,” a guidance document written during the H1N1 outbreak more than a decade ago.  The ADA includes a section answering frequently asked questions by employers, the principles of which the EEOC guidance has applied to the COVID-19 pandemic.  Here are the key takeaways for employers:

  • Employers may ask employees who call in sick if they are experiencing symptoms consistent with the COVID-19 virus. Employers must maintain information about employee illness as a confidential medical record in compliance with the ADA.
  • Employers may measure an employee’s body temperature.
  • Employers may require employees who are experiencing symptoms of the COVID-19 virus to leave the workplace.
  • Employers may require employees who have been away from the workplace during a pandemic to provide appropriate fitness for duty documentation before returning to work. As a practical matter, however, it may be difficult for employees to obtain fitness for duty documentation given the extra demands on healthcare professionals’ time during a pandemic.
  • After making a conditional job offer, employers may screen job applicants for symptoms of the COVID-19 virus, including by measuring an applicant’s body temperature, as long as the employer also screens all applicants for the same type of job.
  • Employers may delay the start date of a job applicant who has tested positive for the COVID-19 virus or has symptoms associated with the virus.
  • Where an employer needs a job applicant to start employment immediately, it may withdraw a job offer if the applicant has symptoms associated with the COVID-19 virus.

Employers with questions about compliance with the ADA or the Rehabilitation Act during the COVID-19 pandemic should consult with legal counsel.