The EEOC issued guidance yesterday (March 18, 2020) to help aid employers who are wondering whether certain actions would violate the Americans with Disabilities Act (ADA) or the Rehabilitation Act, considering the COVID-19 epidemic. The EEOC’s latest guidance stresses that the ADA and Rehabilitation Act do not interfere with or prevent employers from following the guidance of the CDC or other public health authorities. It also provides some guidance for employers on what they can do during this pandemic.

What Can Employers Do During a Pandemic?

Regarding current employees, employers may:

• ask employees who call in sick if they are experiencing symptoms of COVID-19. Employers must keep this information confidential.
• measure employees’ body temperature. Note, not having a fever does not mean the employee is not infected.
• require employees to go/stay home if they have been diagnosed with or have symptoms of COVID-19.
• require a return to work certificate to confirm fitness for duty. However, employers are instructed to be flexible about what that certificate may look like so as not to tax health care providers with paperwork.

What If We Are Hiring?

Regarding applicants, employers may:

• screen for symptoms of COVID-19 post-offer as long as they do it for all.
• take an applicant’s temperature after a conditional offer of employment is made, But, again, remember, no fever does not mean the individual is not infected.
• delay start dates if a new employee has COVID-19 or is experiencing symptoms.
• withdraw an offer of employment if the employer needs the individual to start immediately and the individual has COVID-19 or is experiencing its symptoms. According to the EEOC guidance such an individual can no longer safely enter the workplace under current CDC guidelines

The EEOC previously issued its Pandemic Preparedness in the Workplace and the Americans With Disabilities Act in response to the H1N1 pandemic, and much of that guidance remains applicable now. If today’s guidance did not answer your questions, they may be addressed in this previous guidance.