April 28, 2020
Over the past few weeks, FELTG has received numerous questions about COVID-19, both via email and during our webinars and virtual training events. Here are three of the more common questions, along with answers and guidance, courtesy of the EEOC’s updated guidance on the novel coronavirus.
Why are people talking about the Americans with Disabilities Act related to COVID-19 when COVID-19 is not a disability?
The ADA is relevant to the COVID-19 pandemic in at least three major ways:
- It regulates employers’ disability-related inquiries and medical examinations for all applicants and employees, including those who do not have ADA disabilities.
- It prohibits covered employers from excluding individuals with disabilities from the workplace for health or safety reasons unless they pose a “direct threat” (i.e. a significant risk of substantial harm even with reasonable accommodation).
- It requires reasonable accommodations for individuals with disabilities (absent undue hardship) during a pandemic.
May an agency take an employee’s temperature before permitting the employee to enter the agency facility?
Generally, measuring an employee’s body temperature is a medical exam, and agencies are only allowed to administer medical exams in very narrow circumstances. However, because COVID-19 is a global pandemic, and the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, agencies may measure employees’ body temperatures before allowing them into the workplace.
Keep in mind, not everyone who has the virus will have a fever, so agencies are also permitted to ask employees if they are experiencing other symptoms related to COVID-19, such as shortness of breath, body aches, and loss of smell.
If an employee was diagnosed with COVID-19 or was exposed to COVID-19, may the agency require medical clearance before allowing the employee to re-enter the workplace?
Yes, this requirement for medical clearance is permitted under the Americans with Disabilities Act either because the clearance to return to work is not disability-related or, if the pandemic were truly severe, the request would be justified under the ADA standards for disability-related inquiries of employees. EEOC reminds us, though, that doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide official medical certification, so 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 COVID-19.
For more on these topics plus discussions of emerging workplace issues related to the novel coronavirus, join FELTG on Wednesday, May 13, for the virtual training session EEO Challenges in a COVID-19 World.
Have a question? Ask FELTG.
The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.