The U.S. Equal Employment Opportunity Commission (EEOC) enforces workplace anti-discrimination laws, including rules about medical examinations of employees. As the COVID-19 pandemic wreaks havoc across the globe, many questions that were unthinkable even a few weeks ago have now become routine for employers. Based on EEOC guidance, below are answers to some now-common questions from employers regarding the health of their employees.
- How much information may an employer request from an employee who calls in sick?
During a pandemic, employers covered by the ADA (Americans with Disabilities Act) may ask such employees if they are experiencing symptoms of the virus. These include symptoms such as fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.
- When may an ADA-covered employer take the body temperature of employees during the COVID-19 pandemic?
Generally, measuring an employee’s body temperature is a medical examination. But because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees’ body temperature. However, employers should be aware that some people with COVID-19 do not have a fever.
- Does the ADA allow employers to require employees with symptoms of COVID-19 to stay home?
Yes. The CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace. The ADA does not interfere with employers following this advice.
- When employees return to work, does the ADA allow employers to require doctors’ notes certifying their fitness to work?
Yes. Such inquiries are permitted under the ADA either because they would not be disability-related or, if the pandemic influenza were truly severe (as is COVID-19), they would be justified under the ADA standards for disability-related inquiries of employees. As a practical matter, however, healthcare professionals may be too busy right now to provide fitness-for-duty documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an email to certify that an individual does not have the virus.
- If an employer is hiring, may it screen applicants for symptoms of COVID-19?
Yes. An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job. This ADA rule applies whether or not the applicant has a disability.
- May an employer take an applicant’s temperature as part of a post-offer, pre-employment medical exam?
Yes. Any medical exams are permitted after an employer has made a conditional offer of employment. However, employers should be aware that some people with COVID-19 do not have a fever.
- May an employer delay the start date of an applicant to has COVID-19 or associated symptoms?
Yes. According to current CDC guidance, an individual who has COVID-19 or symptoms associated with it should not be in the workplace.
- Can an employer withdraw a job offer if it needs the applicant to start immediately, but the applicant has COVID-19 or associated symptoms?
Yes. Based on current CDC guidance, this individual cannot safely enter the workplace, and therefore the employer may withdraw the job offer.
Please contact us to discuss your questions so we can assist you in moving forward.