In 2009 in response to the H1N1 outbreak, the Equal Employment Opportunity Commission issued a publication titled Pandemic Preparedness in the Workplace and the Americans with Disabilities Act. On March 21, the EEOC updated the guidance in light of the COVID-19 pandemic. The guidance provides employers with information on protecting their employees from disease consistent with the requirements of the Americans with Disabilities Act.
The EEOC asks and answers several key questions involved with medical inquiries and notices of infection to co-workers:
- Employers may ask employees who call in sick if they are experiencing symptoms consistent with COVID-19.
- Employers may measure employee body temperatures to screen for COVID-19.
- Employers may require employees experiencing symptoms consistent with COVID-19 to stay at home.
- Employers may require return to work notes from employees returning to work from illness. The EEOC notes that the CDC is discouraging employers from requiring this information to avoid burdening the health care system.
- Employers can advise co-workers that an employee has been diagnosed with COVID-19 but cannot identify that employee.
- Employers may survey employees with regard to their childcare, public transportation, and other needs during a pandemic.
The guidance states that the above medical inquiries are consistent with the ADA’s medical examination requirements. In addition, the EEOC has classified COVID-19 as a “direct threat” under the ADA, meaning that employers can deny reasonable accommodation requests that would expose employees or third parties to infection.