The U.S. Equal Employment Opportunity Commission (EEOC) released a news alert yesterday addressing the impact of the Americans with Disabilities Act (ADA) and the Rehabilitation Act on employers’ responses to a potential pandemic involving coronavirus, or COVID-19. Although the EEOC assured employers that the ADA and Rehabilitation Act do not interfere with or prevent employers from following guidelines and recommendations for navigating the impact of COVID-19 in the workplace, the EEOC reminded employers of its 2009 guidance document addressing steps employers should take to avoid violating federal disability laws before, during, and after a pandemic.
The guidance begins with a reminder that certain fundamental requirements of the ADA apply during pandemic situations. Specifically, the ADA dictates when covered employers facing the threat of a pandemic can make inquiries relating to an employee’s potential exposure or request an employee submit to a medical examination; can exclude individuals from the workplace based on concerns that employees pose a “direct threat,” meaning a significant risk of substantial harm even with reasonable accommodation, because of their exposure to or infection with a virus; and must reasonably accommodate an individual with potential exposure or infection.
The EEOC guidance mostly reiterates the legal standards applicable in each of these situations, but it also provides some analysis of how the standards may be applied during a pandemic or other viral threat. Specifically, the guidance explains that with respect to the “direct threat” standard for excluding employees based on medical issues, employers should rely on the latest CDC and state or local public health assessments when determining when a “direct threat” is present. According to the guidance, an illness that is “like seasonal influenza or the spring/summer H1N1 influenza” likely would not pose a direct threat. If federal, state, or local public health authorities determine that the virus is “significantly more severe,” however, “it could pose a direct threat.”
The guidance also includes a thorough Q&A for employers. Among other points, the Q&A reminds employers of the following:
- Beware the Pre-Pandemic Survey. Employers must take care when making surveys of employees to identify individuals who might be more susceptible to pandemic symptoms because of existing health conditions. Such surveys are almost certainly not allowed prior to the identification of a pandemic by the CDC or other state or local public health agencies. General surveys listing a number of disability- and non-disability-related reasons an employee might be more likely to be absent may be acceptable even before a pandemic occurs. In such cases, the employee should not be required to identify the specific reason for responding yes to such a survey.
- There’s More Latitude If a Serious Pandemic Hits. If the CDC and other public health agencies report that a pandemic has become more severe or serious than the normal flu, employers have much more latitude to conduct such surveys and to require individuals who may be at great risk to stay home, even if they do not show symptoms. In such cases, employers may do other things they could not do prior to an outbreak—such as take employee’s temperatures.
- Even Less Serious Pandemics Increase Employer Leeway. In the case of an active pandemic, even one that is only as serious as the seasonal flu or H1N1, employers can send employees home if they display symptoms, ask employees if they are experiencing symptoms, ask employees who travel about potential exposure to the virus during their trips, suggest telework for all employees, and require employees to adopt infection control practices (such as hand washing and the wearing of protective equipment such as face masks and gloves). Employers may not require employees to receive immunizations, however, although they can encourage it.
The guidance includes a number of examples that employers may find useful as they navigate the coming days and weeks. Because of the uncertainties as to how these standards will be applied in the case of COVID-19, legal counsel regarding pandemic preparedness steps is more essential now than ever.