COVID-19 Client Alerts:

ADA and Equal Opportunity Employer Guidance During a Pandemic

The EEOC has provided guidance regarding how employers can comply with equal employment laws like the Americans with Disability Act (“ADA”) in light of the unique issues that arise when a pandemic causes several government agencies to issue guidance with an eye to public health, instead of equal employment.

With that in mind, employers may take the following steps to reduce risk in the workplace, without violating the ADA or other equal employment laws, according to the EEOC:

1. Ask employees if they are experiencing COVID-19 symptoms. Common symptoms include fever, chills, cough, sore throat, and shortness of breath. But employers must keep the information they receive confidential.
2. Send employees home if they have COVID-19 symptoms.
3. Although usually considered a medical examination, employers may measure employees’ body temperature. However, employers should be aware that some people with COVID-19 do not have a fever.
4. Ask employees for a fitness-for-duty note before they return to work. In light of the overburdened health care system, you should be flexible in the type of note you require. Doctors and nurses may be unable to provide the standard documentation at this time.
5. Ask employees who return from travel if they were visiting an area designated as high-risk by the CDC.
6. Require employees to leave work if they are subject to self-quarantine guidelines issued by public health agencies.
7. Encourage employees to work remotely.
8. 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.
9. Delay the start date of an applicant who has COVID-19 or symptoms associated with it.
10. Withdraw a job offer of an applicant with symptoms of COVID-19 if the applicant needs to start immediately.

Employers who provide accommodations to disabled employees must continue to do so during the pandemic, unless it will create an undue hardship. If it will create an undue hardship, the employer and employee must engage in discussion to determine if another accommodation is possible. Thus, if an employee with a disability needs the same reasonable accommodation when working remotely that they had at the workplace, the employer should provide that accommodation, absent undue hardship.

Employers should be alert to the need to stop any racial or ethnic-based discrimination or harassment against employees of Asian descent, and should take steps to educate all employees that persons of Asian descent are not at a higher risk of having or acquiring COVID-19.

Please be mindful that this is emergency guidance from the EEOC, and not from its state counterpart, the Department of Fair Employment and Housing. It remains to be seen whether the Department will agree with the EEOC or what guidelines will apply when the pandemic threat passes.

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