COVID-19 Updates
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COVID-19 IN THE WORKPLACE AND THE AMERICANS WITH DISABILITIES ACT

March 31, 2020

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 includes the requirement for reasonable accommodation and rules about medical examinations and inquiries. The EEOC updated their Guidance previously drafted in 2009 in response to the H1Ni virous, incorporating changes relevant to COVID-19.  The EEOC provides their position on issues related to the American’s with Disabilities Act (ADA).  

The bottom line is that, according to the EEOC, the ADA does not interfere with an employer’s efforts to follow the advice of the CDC, state and local public health authorities pertaining to steps to take in the workplace because of COVID-19 . 

The EEOC has clarified when the employer can ask certain question, send employees home and ask for doctor’s opinions.  

How much information may an employer request from an employee who calls in sick, in order to protect the rest of its workforce during the COVID-19 pandemic?

The EEOC states that during COVID-19 pandemic, ADA-covered employers may ask if they are experiencing COVID-19 such as fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.

When may an ADA-covered employer take the body temperature of employees during the COVID-19 pandemic?

Usually, taking a body temperature is a medical examination. Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, the EEOC says employers may measure employees' body temperature. However, employers should be aware that some people with COVID-19 do not have a fever.

Does the ADA allow employers to require employees to stay home if they have symptoms of the COVID-19? 

Yes. The CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace. The ADA does not interfere with employers following this advice.

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

Yes. The ADA prohibits employee disability-related inquiries or medical examinations unless they are job-related and consistent with business necessity. Generally, a disability-related inquiry or medical examination of an employee is job-related and consistent with business necessity when an employer has a reasonable belief, based on objective evidence, that an employee will pose a direct threat due to a medical condition.  The EEOC says the current COVID-19 status support “a finding that a significant risk of substantial harm would be posed by having someone with COVID-19, or symptoms of it, present in the workplace at the current time.”      

 As a practical matter, however, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. New approaches may be necessary given the quickly changing landscape of testing protocols, availability of testing and healthcare providers.  The EEOC references possible reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus. 

If you wish to further explore these issues check out the EEOC document at: https://www.eeoc.gov/facts/pandemic_flu.html#q16

Also, contact one of the attorneys at Hite, Fanning & Honeyman LLP for further assistance

Gaye Tibbets

316-269-0217

tibbets@hitefanning.com

Jon Newman

316-269-0214

Newman@hitefanning.com

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