With talk of reopening states and getting back to work emerging amid the ongoing COVID-19 pandemic, the United States Equal Employment Opportunity Commission (“EEOC”) announced that employers may test for COVID-19 without violating the Americans with Disabilities Act (“ADA”). In COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, the EEOC provides that during a pandemic, ADA-covered employers may ask employees who call in sick if they are experiencing symptoms of the pandemic virus. In addition, because the Centers for Disease Control (“CDC”) and state/local health authorities have acknowledged community spread of COVID-19 and have issued attendant precautions, employers may also measure employees’ body temperatures upon entering the workplace. Significantly, employers must maintain all information about employee health as confidential medical records in compliance with the ADA.
The EEOC further acknowledges that as public health authorities and doctors learn more about COVID-19, they may expand the list of associated symptoms about which employers may inquire. When screening employees at home or entering the workplace during this time the EEOC encourages employers to rely on the CDC, other public health authorities, and reputable medical sources for guidance on emerging symptoms associated with the disease. These sources may guide employers when choosing questions to ask employees to determine whether they would pose a direct threat to health in the workplace.
Pursuant to federal and state occupational safety and health laws, employers have a duty to provide a safe workplace, and to take reasonable steps to protect all employees. This includes the identification, elimination or at a minimum mitigation of known hazards. The United States Department of Labor, Occupational Health and Safety Administration (“OSHA”) has published Guidance on Preparing Workplaces for COVID-19, which identifies reasonable steps employers can take to reduce workers’ risk of exposure in the workplace, including development of an infectious disease preparedness and response plan; implementation of basic infection prevention measures; development of policies and procedures for prompt identification and isolation of sick people, if appropriate; development, implementation and communication about workplace flexibilities and protections; and, implementation of workplace controls. See Coronavirus Resources link, which includes guidance for various industries at www.osha.gov.
The EEOC’s March 21, 2020 Pandemic Preparedness In The Workplace And The Americans With Disabilities Act, contains more useful information for employers in responding to a pandemic. All EEOC materials related to COVID-19 are collected at www.eeoc.gov/coronavirus.