EEOC Issues Guidance on ADA Compliance During COVID-19 Crisis
On April 9, 2020, the EEOC issued updated guidance regarding COVID-19 and the Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973 (the Rehabilitation Act). While these laws prohibit covered employers from discriminating against individuals due to a disability and limit an employer’s ability to make medical inquiries regarding employees and applicants, the EEOC’s guidance clarifies that neither the ADA nor the Rehabilitation Act interfere with or prevent employers from following guidelines and suggestions made by the CDC or state/local public health authorities regarding actions employers should take regarding COVID-19. It also provides several examples of what employers may or may not do when dealing with COVID-19 issues without violating federal discrimination laws.
Disability-Related Inquiries and Medical Exams.
While an employer is generally prohibited from making disability-related inquiries or conducting medical exams except in limited circumstances, during a pandemic, an employer may –
- Screen job applicants for symptoms of COVID-19 after making a conditional job offer, including taking the applicant’s temperature as part of a post-offer, pre-employment medical exam (provided that such medical exams are required for all entering the same type of job);
- Ask employees who call in sick or are entering the workplace if they are experiencing symptoms of COVID-19, as identified by public health authorities; and
- Measure employees’ body temperatures when entering the workplace or while at work in order to determine if they have a fever.
Actions to Prevent the Spread of COVID-19 in the Workplace.
If an employer determines that an applicant or employee has or may have COVID-19, the employer may –
- Delay the start date of an applicant, or, if the employer needed the applicant to start immediately, withdraw the job offer;
- Require an employee who is ill with COVID-19 symptoms to leave the workplace; and
- Require a return-to-work release from an employee who is diagnosed with or has presented symptoms of COVID-19.
While older individuals and pregnant individuals may be at greater risk for complications from COVID-19, an employer may not make an employment decision, such as a hiring decision, based on age and/or pregnancy. However, an employer may choose to allow such individuals to work remotely and/or ask if they would like to postpone a start date. An employer also must continue to provide reasonable accommodations to qualified individuals with disabilities, including individuals who may be at greater risk from COVID-19 due to a preexisting disability.
In addition to the guidance regarding ADA compliance during the COVID-19 crisis, the new EEOC publication (“What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws”) also provides guidance regarding employers’ obligations relating to the confidentiality of employee medical information, and tips for preventing pandemic-related harassment from occurring in the workplace.
Finally, the EEOC also has updated the guidance it originally issued in 2009 to deal with the H1N1 pandemic: “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act,” to address COVID-19 issues. Other helpful EEOC resources are available here.
For more information about discrimination or harassment issues related to COVID-19, or about any of the new developments in employment-related laws as a result of the COVID-19 crisis, please refer to the HGRS LLP Coronavirus (COVID-19) Resource Center, at www.hgrslaw.com, or contact our firm at (404) 442-8776.