COVID-19 has changed workplaces across the country. The virus’s status as a pandemic has given employers more tools to protect employees from the risks of infection at work. While the ADA normally restricts employers from making medical inquiries to employees or conducting medical exams at work, the COVID-19 pandemic has relaxed some of these restrictions.
For example, employers can now ask employees who call in sick if they are experiencing symptoms of the pandemic – such as fever, chills, cough, shortness of breath, and sore throat. Employers can also to require employees to stay home if they have symptoms of the COVID-19 virus.
Employers may also now take employees’ body temperatures to check for signs of a fever, which is a symptom of the virus. If an employer decides to take temperatures, though, it’s important to do so in a neutral and consistent way, as “singling out” particular employees (or particular groups of employees) may lead to discrimination claims.
Importantly, taking temperatures isn’t foolproof. Employers who decide to take employee temperatures should keep in mind that some individuals who are carrying the COVID-19 virus do not have a fever or other symptoms.
Employers should know two other important things about COVID-19-related medical inquiries and exams. First, all information about employee illnesses must be treated as a confidential medical record and kept in a separate file. Second, employers should base decisions on objective medical and scientific evidence from experts (such as the Centers for Disease Control and Prevention). Making decisions based on fears, stereotypes, or assumptions is an easy way to find yourself facing a discrimination claim. For more information, check out the EEOC’s updated guidance.
COVID-19 may also affect employers’ accommodation obligations toward employees who have underlying health conditions that make COVID-19 particularly dangerous. The CDC has identified several conditions to create high risk for serious COVID-19 infection including asthma, diabetes, lung disease, heart conditions, being immunocompromised (which may result from cancer treatment, organ transplant, HIV/AIDS infection, or other conditions), liver disease, or kidney disease.
The ADA requires employers to make reasonable accommodations to assist employees in performing essential job functions. Employees who have one or more of these conditions may raise concerns about the risks of working or returning to work. Employers should engage these employees in an open dialogue and determine whether an accommodation (such as additional leave) can be provided.
As always, employers should consult the latest guidance and knowledgeable employment counsel in making ADA-related decisions during the pandemic.
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