COVID-19 Response: The EEOC Chimes In Concerning How to Navigate the Americans with Disabilities Act in a Pandemic Context
New York, N.Y. (March 23, 2020) - The Equal Employment Opportunity Commission (EEOC) is the federal agency responsible for enforcement of the employment discrimination laws. The Commission has issued two publications to assist employers and employees in interpreting the Americans with Disabilities Act (ADA) in the context of dealing with pandemics, one of which is newly issued to address questions arising as a result of the COVID-19 outbreak. This alert briefly recaps the content of those publications.
The EEOC’s ADA Guidance as to COVID-19
First, on March 18, 2020, the EEOC issued “What You Should Know About the ADA, the Rehabilitation Act, and COVID-19.” This publication answers eight questions that clarify what employers may do and may not do as to their workforce under the ADA and the Rehabilitation Act (applicable to the federal government and certain contractors).
- The EEOC clarifies that during the pandemic, employers are permitted to ask employees who call in sick if they are experiencing symptoms of COVID-19 (e.g., fever, chills, cough, shortness of breath, or sore throat), but the employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.
- Employers are permitted to take the body temperature of employees during the COVID-19 pandemic in light of the CDC and state/local health authorities’ acknowledgement of the community spread of COVID-19 . However, the Commission offers the reminder that not everyone who has COVID-19 will experience a fever.
- The ADA allows employers to require employees to stay home if they have symptoms of the COVID-19.
- When employees are ready to return to work, the ADA allows employers to require doctors' notes certifying their fitness for duty. The EEOC notes, however, that healthcare professionals may be too busy to provide fitness-for-duty documentation. Hence, employers may need to adopt new approaches such as reliance on local clinics or email certification. The EEOC fails to note the impact of the current lack of a sufficient number of tests for COVID-19, as a result of which healthcare professionals may not be able to address whether many individuals have the condition and whether they have recovered.
- Employers may screen applicants for COVID-19 symptoms, but only after making a conditional job offer provided it does so for all entering employees in the same type of job (including disabled and non-disabled applicants).
- Because the ADA permits employers to require post-offer, pre-employment medical exams, employers may take an applicant’s temperature as part of such an exam (noting again that some people with COVID-19 do not have a fever).
- Employers are also permitted to delay the start date of an applicant who has COVID-19 or associated symptoms, and may also withdraw a job offer because the applicant cannot safely enter the workplace. This guidance does not explain the rationale for this conclusion, but the guidance addressed below explains that withdrawing the job offer may be permissible because employing the individual might create a “direct threat” to the safety of other employees. But the guidance below cautions that an individualized assessment is required in each instance.
The EEOC’S Pandemic Guidance
The EEOC had previously issued a guide to pandemic preparedness in the workplace and the ADA which can be accessed on its website. This guide addresses many of the same issues as above, but provides more context about the implicated provisions of the ADA, and explains how those provisions apply to pandemic situations.
One helpful point explains how to explore with job applicants whether they or their family members may have COVID-19 without running afoul of the ADA’s prohibition on asking applicants if they are disabled. The following example survey may be helpful guide:
ADA-Compliant Pre-Pandemic Employee Survey
Directions: Answer “yes” to the whole question without specifying the factor that applies to you. Simply check “yes” or “no” at the bottom of the page.
In the event of a pandemic, would you be unable to come to work because of any one of the following reasons:
- If schools or day-care centers were closed, you would need to care for a child;
- If other services were unavailable, you would need to care for other dependents;
- If public transport were sporadic or unavailable, you would be unable to travel to work; and/or;
- If you or a member of your household fall into one of the categories identified by the CDC as being at high risk for serious complications from the pandemic influenza virus, you would be advised by public health authorities not to come to work (e.g., pregnant women; persons with compromised immune systems due to cancer, HIV, history of organ transplant or other medical conditions; persons less than 65 years of age with underlying chronic conditions; or persons over 65).
Answer: YES______ , NO_______
The EEOC guidance also offers a reminder of employer obligations to engage in an interactive process and provide reasonable accommodations to disabled applicants and employees, including those who telework during a period of office closures. For example, a hearing impaired manager may use video relay services to participate in daily management and staff conference calls.
Additionally, employers should be mindful of the EEOC’s advice that employers may not ask symptom-free applicants and employees to disclose underlying medical conditions even if the CDC says such conditions could make the individual especially vulnerable to influenza conditions. The ADA prohibits such disability-related inquiries and requiring medical examinations of symptom-free individuals.
Notably, these EEOC publications do not address the issue of whether an employee diagnosed with COVID-19 should be considered to have a disability under the ADA. That may require a case-by-case analysis, as is ordinarily called for under the ADA. At one time, transitory conditions of less than six months duration were not considered ADA disabilities. However, based on the 2008 Americans with Disabilities Act Amendments Act (ADAAA), the ADA appears to now protect persons with temporary conditions that are severe. According to the EEOC’s regulations under the ADA, the effects of an impairment lasting or expected to last fewer than six months can be substantially limiting to a major life activity within the meaning of this section 29 C.F.R. § 1630.2(j)(1)(ix). State and local laws may also provide protection for temporary conditions.
For more information on this guidance, contact the author of this alert. Lewis Brisbois has formed a COVID-19 Attorney Response Team to help your business with the myriad legal issues arising from the outbreak. Visit our COVID-19 Response Resource Center to find an attorney in your area.
Peter T. Shapiro, Partner
Meryl Mills, Partner
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