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COVID-19 and the ADA

The EEOC issued on March 19, 2020 an FAQ entitled What You Should Know About the ADA, the Rehabilitation Act, and COVID-19 that contains important guidance for employers adjusting to the new reality presented by the COVID-19 pandemic.

While the Americans with Disabilities Act (ADA) and the Rehabilitation Act continue to apply, they do not prevent compliance with guidelines issued by the Centers for Disease Control (CDC) or state and local public health authorities.  Here are some answers to the most common questions employers have:

How much information can be requested from an employee who calls in sick?

-Employers may ask an employee who calls in sick if they are experiencing symptoms of COVID-19, including fever, chills, cough, shortness of breath, or sore throat.  All information should be maintained as a confidential medical record.

Can an employer take the body temperatures of employees during the COVID-19 pandemic?

-Yes. While taking a person’s temperature is considered a medical examination, employers can take body temperatures of employees based upon the guidance of public health authorities in the wake of the community spread of COVID-19.

Can an employee who has symptoms of COVID-19 be required to stay home or leave work?

-Yes.

When employees return to work, can employers require doctors’ notes certifying their fitness for duty?

-Yes. But as a practical matter, health care professionals may be too busy during the pandemic to provide fitness-for-duty documentation.  New approaches may be necessary, such as reliance on local clinics to provide a form, stamp, or an email to certify that the employee does not have the virus.

Can an employer who is hiring screen applicants for symptoms of COVID-19?

-Yes. An employer may screen applicants for COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job.

Can an employer take an applicant’s temperature as part of a post-offer, pre-employment medical exam?

Yes.

Can an employer withdraw a job offer when it needs the applicant to start immediately, but the applicant has COVID-19 or symptoms of COVID-19?

-Given current CDC guidelines, this individual cannot safely enter the workplace, and an employer can therefore withdraw the job offer.

This most recent EEOC advice is likely to change as the CDC and other public health authorities adjust their recommendations for coping with the pandemic.  This situation is fluid, and employers should keep abreast of EEOC recommendations to ensure that they comply with the ADA and Rehabilitation Act while still safeguarding their workplaces in the midst of the COVID-19 pandemic. For assistance, please call us at (410) 727-4300.

 

 

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