The coronavirus pandemic has had an undeniably dramatic and devastating impact on public health in the U.S. It also has had dire consequences for the U.S. economy and businesses across the country. Many nonessential businesses have been forced to close altogether. Those that have been permitted, or required, to continue providing essential services, including many retailers, have struggled to find ways to keep workers from getting sick from coronavirus, and keep their retail operations open to the public. Many businesses are taking additional safety measures to protect their workers, such as adding plexiglass barriers, and making hand sanitizer readily available to workers and customers.
Some large retailers, including Walmart and Amazon, have rolled out a new defensive mechanism against coronavirus – requiring employees to submit to a body temperature checks when they arrive at work. Other retailers such as Starbucks and Home Depot are making thermometers available to employees to voluntarily self-monitor body temperature.
While there seems to be tangible workforce protections attached to mandatory employee body temperature checks – elevated body temperature is an indicator of coronavirus – some interest groups have expressed concerns about the invasiveness and loss of personal privacy to employees who are subject to such testing. And there is an undeniable tension between mandatory body temperature checks for all employees and federal law, in particular the Americans with Disabilities Act (ADA), which ordinarily protects employees from most employer “medical examinations,” like body temperature checks, unless the employer has an objectively reasonable basis to believe that the employee has a medical condition that impairs the employee’s ability to perform their job, or the employee imposes a direct threat to self or others due to a medical condition, like COVID-19.
So, do current public health concerns posed by COVID-19 outweigh the ADA’s protections for employees? The EEOC answered in the affirmative, mostly, in a technical assistance bulletin first issued on April 9, 2020. While reminding employers that the ADA and other employee protection laws “continue to apply during the time of the COVID-19 pandemic . . .” the EEOC acknowledged that those protections mostly take a back seat to “guidelines and suggestions made by the CDC or state/local public health authorities about steps employers should take regarding COVID-19.” Summarized below are some of the key takeaways regarding the questions with which many employers continue to struggle during the coronavirus pandemic.
May an employer delay the start date of an applicant who has COVID-19 or symptoms associated with it?
Yes. Current CDC guidance provides that an individual who has COVID-19 or symptoms associated with it should not be in the workplace.
May an employer withdraw a job offer when it needs the applicant to start immediately but the individual has COVID-19 or symptoms of it?
Yes. Based on current CDC guidance, this individual cannot safely enter the workplace, and therefore the employer may withdraw the job offer.
May an employer postpone the start date or withdraw a job offer because the individual is 65 years old or pregnant, both of which place them at higher risk from COVID-19?
No. While the CDC has identified those who are 65 or older, and pregnant women, as being at greater risk of harm from COVID-19, that does not justify unilaterally postponing an employee’s start date or withdrawing a job offer. However, an employer should be receptive to allowing telework or to discussing with these individuals if they would like to postpone the start date.
How much medical information can an employer request from an employee who calls in sick or exhibits signs of sickness?
ADA-covered employers may ask such employees if they are experiencing influenza-like symptoms, such as fever or chills and a cough or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.
Applying this principle to current CDC guidance on COVID-19, employers may ask employees who report feeling ill at work, or who call in sick, questions about their symptoms to determine if they have or may have COVID-19. Currently these symptoms include, for example, fever, chills, cough, shortness of breath, or sore throat.
Note that employers are required to take special care to protect medical information obtained from or provided by an employee. The ADA requires that all employee medical information be stored separately from the employee’s personnel file. Medical information specifically related to COVID-19 may be kept in existing employee medical files. Medical information includes an employee statement that he or she has the disease or suspects he or she has the disease, and the employer’s notes from questioning the employee about symptoms.
During a pandemic, may an employer ask an employee why he or she has been absent from work if the employer suspects it is for a medical reason?
Yes. Asking why an individual did not report to work is not a disability-related inquiry. An employer is always entitled to know why an employee has not reported for work.
During a pandemic, may an employer ask an employee who does not have influenza symptoms to disclose whether they have a medical condition that the CDC says could make them especially vulnerable to coronavirus complications?
Generally, no. However, because the coronavirus pandemic has become more severe or serious according to the assessment of local, state or federal public health officials, ADA-covered employers may have sufficient objective information from public health advisories to reasonably conclude that employees will face a direct threat if they contract pandemic influenza. Only in this circumstance may ADA-covered employers make disability-related inquiries or require medical examinations of asymptomatic employees to identify those at higher risk of influenza complications.
If an employee voluntarily discloses (without a disability-related inquiry) that he has a specific medical condition or disability that puts him at increased risk of influenza complications, the employer must keep this information confidential. The employer may ask him to describe the type of assistance he thinks will be needed (e.g. telework or leave for a medical appointment). Employers should not assume that all disabilities increase the risk of influenza complications. Many disabilities do not increase this risk (e.g. vision or mobility disabilities).
If the coronavirus pandemic were to become more severe or serious according to the assessment of the CDC or state or local public health officials, an employer may have sufficient objective information to reasonably conclude that employees will face a direct threat if they contract COVID-19 and make disability-related inquiries or require medical examinations of asymptomatic employees to identify those at higher risk of influenza complications.
During a pandemic, may an employer take its employees’ temperatures to determine whether they have a fever?
Measuring an employee’s body temperature is a medical examination subject to the objective reasonableness requirements of the ADA. However, because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions as of March 2020, employers may measure employees’ body temperature. As with all medical information, the fact that an employee had a fever or other symptoms would be subject to ADA confidentiality requirements.
May an employer send employees home if they display influenza-like symptoms during the pandemic?
Yes. The CDC states that employees who become ill with symptoms of influenza-like illness at work during a pandemic should leave the workplace. Advising such workers to go home is not a disability-related action if the illness is akin to seasonal influenza or the 2009 spring/summer H1N1 virus. Additionally, the action would be permitted under the ADA if the illness were serious enough to pose a direct threat. Applying this principle to current CDC guidance on COVID-19, this means an employer can send home an employee with COVID-19 or symptoms associated with it.
May an employer disclose the name of an employee to a public health agency when it learns that the employee has COVID-19?
Yes.
May a temporary staffing agency or contractor that places an employee in an employer’s workplace notify the employer if it learns the employee has COVID-19?
Yes. The staffing agency or contractor may notify the employer and disclose the name of the employee to facilitate any additional workplace contacts the employee may have had.
May an employer encourage employees to telework (e.g., work from home) as an infection-control strategy during a pandemic?
Yes. Telework is an effective infection-control strategy that is also familiar to ADA-covered employers as a reasonable accommodation. Also, employees with disabilities that put them at high risk for complications of pandemic influenza may request telework as a reasonable accommodation to reduce their chances of infection during a pandemic.
Important caveat: If an employee with a disability needs the same reasonable accommodation to telework that he or she had in the workplace, the employer should provide that accommodation, unless doing so would pose an undue hardship on the employer.
During a pandemic, may an employer adopt mandatory employee infection-control policies, such as regular hand washing, wearing personal protective equipment (e.g., face masks, gloves, or gowns) at the workplace?
Yes. Infection control practices, such as regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal, does not implicate the ADA. Nor does requiring employees to wear personal protective equipment during a pandemic. Note, however, where an employee with a disability needs a related reasonable accommodation under the ADA (e.g., non-latex gloves, or gowns designed for individuals who use wheelchairs), the employer should provide these, absent undue hardship.
When an employee returns from travel during a pandemic, must an employer wait until the employee develops influenza symptoms to ask questions about exposure to pandemic influenza during the trip?
No. These would not be disability-related inquiries. With respect to the current COVID-19 pandemic, employers may follow the advice of the CDC and state/local public health authorities regarding information needed to permit an employee’s return to the workplace after visiting a specified location, whether for business or personal reasons.
If an employee voluntarily discloses (without a disability-related inquiry) that he has a specific medical condition or disability that puts him at increased risk of influenza complications, the employer must keep this information confidential. The employer may ask him to describe the type of assistance he thinks will be needed (e.g. telework or leave for a medical appointment). Employers should not assume that all disabilities increase the risk of influenza complications. Many disabilities do not increase this risk (e.g. vision or mobility disabilities).
The EEOC’s FAQs above highlight that the agency has relaxed some of the ADA’s workplace protections and rules about what employers can – and cannot — ask employee’s about their health. This has been done in deference to guidelines and suggestions issued by the CDC and/or state and local public health authorities during the COVID-19 pandemic. However, employees should be mindful that the guidance of those public health authorities is likely to change as the COVID-19 pandemic evolves, and that the rest of the ADA’s employer restrictions continue in effect during the current public health crisis.
We will be providing additional updates regarding the EEOC’s application of the ADA’s requirements to the COVID-19 crisis as they are announced. If you need any assistance in this matter, please contact Doug Taylor at (703) 525-4000 or rdougtaylor@beankinney.com.
This article is for informational purposes only and does not contain or convey legal advice. Consult a lawyer. Any views or opinions expressed herein are those of the authors, and are not necessarily the views of any client.