EEOC Weighs in on Coronavirus

On the heels of our recent blog about COVID-19, the EEOC weighed in with what employers should know about anti-discrimination laws and coronavirus.

The EEOC enforces certain anti-discrimination laws, including the ADA, which protects applicants and employees against disability discrimination. The ADA also regulates medical examinations and inquiries for all employees and applicants, including those without an ADA qualifying disability. The EEOC confirmed that ADA rules continue to apply, which means covered employers must provide reasonable accommodation for individuals with disabilities (barring any undue hardship) and may only exclude such individuals from the workplace for health or safety concerns if they pose a “direct threat,” or a significant risk of substantial harm even with reasonable accommodation. These rules do not, however, prevent employers from following CDC guidance regarding coronavirus.

Specifically, the EEOC has provided guidance about how much information employers may request from an employee who calls in sick, when employers may take employee temperature during a coronavirus-like event, when employers can require employees to stay home from work, and if employers may require a doctor’s note certifying fitness for duty upon return to work.

How much information may an employer request from an employee who calls in sick, in order to protect the rest of its workforce during a Coronavirus-like event?

ADA-covered employers may ask employees who call in sick if they are experiencing flu-like symptoms, including fever or chills and a cough or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA. If coronavirus turns out to be similar to seasonal influenza, such questions are not considered disability-related. If, however, coronavirus becomes sever, such inquiries, even if considered to be disability-related, are still justified by a reasonable belief based on objective evidence that severe coronavirus poses a direct threat.

When may an ADA-covered employer take the body temperature of employees during a Coronavirus-like event?

Generally speaking, taking an employee’s temperature is considered a medical examination, and requiring medical examinations is restricted to limited circumstances. If coronavirus becomes more severe than the seasonal flu or other pandemics such a H1N1 virus of 2009, or if coronavirus becomes widespread in the community as assessed by the CDC or state or local health authorities, it’s possible an employer could then legally take employee temperatures. Employers should note, however, that not all reported cases of coronavirus are accompanied by fever. 

Does the ADA allow employers to require employees to stay home if they have symptoms of the Coronavirus?

Employers may require employees who become ill with flu-like symptoms to stay home, or leave the workplace if already at work. The EEOC confirms this is not disability-related action if coronavirus is similar to seasonal flu, and if coronavirus becomes severe, such action is permitted by the ADA because severe coronavirus poses a direct threat.

When employees return to work, does the ADA allow employers to require doctors’ notes certifying their fitness for duty?

The EEOC indicates that employers are allowed to require a doctor’s note from an employee returning to work because such inquiries are either not disability-related, or again, if coronavirus becomes severe, such action is justifiable based on objective evidence that severe coronavirus poses a direct threat.

This blog article is intended for general informational purposes only and should not be construed as legal advice or opinion. Contact myHRcounsel with questions concerning specific facts and circumstances.