The U.S. Equal Employment Opportunity Commission (“EEOC”) enforces workplace anti-discrimination laws, including the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act. This week, the EEOC twice updated its webpage for “What You Should Know About the ADA, the Rehabilitation Act, and COVID-19” to include additional guidance with respect to job applicants and employees. As for employees, the EEOC (relying on its existing “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act” guidance) has now clarified that it is not a violation of the ADA for employers to:
- Ask employees if they are experiencing symptoms of the pandemic virus, provided all such information is maintained as a confidential medical record in compliance with the ADA;
- Measure an employee’s body temperature;
- Require employees to stay home if they exhibit COVID-19 symptoms; and
- Require doctors’ notes certifying fitness to return to work.
As for applicants, the EEOC now advises that employers may screen applicants for COVID-19 symptoms after making a conditional offer of employment, and may delay an applicant’s start date if he or she displays symptoms or has COVID-19. The employer may withdraw a job offer for an applicant who has symptoms or tests positive for COVID-19 if the employer needs someone to start in the role immediately.
Whatever policies an employer adopts must apply equally to all similarly situated employees, and employers should consider the practical and logistical issues associated with obtaining information such as employee temperatures—for example, accuracy, confidentiality, and what the employer will do with the information. The EEOC also reminds employers “that guidance from public health authorities is likely to change as the COVOD-19 pandemic evolves” and to “continue to follow the most current information on maintaining workplace safety.” Importantly, the EEOC has explained that the ADA does not “interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state/local public health authorities about steps employers should take regarding COVID-19.”