On March 21, 2020, the EEOC issued an updated a 2009 publication originally issued during the spread of the H1N1 virus, retailoring it to address COVID-19. You can find the full publication here. The publication addresses an employer’s rights and obligations under the Americans With Disabilities Act in the face of an epidemic or pandemic.
Of most interest in the public safety workplace are a series of questions and answers about how an employer may deal with employees during a pandemic. Paring the Q&As down to their essentials, here is the EEOC’s guidance.
Can the employer send employees home if they display similar symptoms to those caused by the disease underlying a pandemic?
Yes. The EEOC believes that “advising such workers to go home is not a disability-related action. . . Additionally, the action would be permitted under the ADA if the illness were serious enough to pose a direct threat. This means an employer can send home an employee with COVID-19 or symptoms associated with it.
During a pandemic, how much information may an ADA-covered employer request from employees who report feeling ill at work or who call in sick?
ADA-covered employers may ask employees if they are experiencing symptoms similar to those caused by the disease. The EEOC believes that “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.”
During a pandemic, may an ADA-covered employer take its employees’ temperatures to determine whether they have a fever?
The EEOC advises that “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.”
When an employee returns from travel during a pandemic, must an employer wait until the employee develops symptoms to ask questions about exposure to the pandemic disease during the trip?
No. The EEOC believes that “these would not be disability-related inquiries. 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.”
During a pandemic, may an ADA-covered employer ask employees who do not have symptoms to disclose whether they have a medical condition that the CDC says could make them especially vulnerable to complications?
No. The EEOC believes that “making disability-related inquiries or requiring medical examinations of employees without symptoms is prohibited by the ADA. However, under these conditions, employers should allow employees who experience flu-like symptoms to stay at home, which will benefit all employees including those who may be at increased risk of developing complications.”
May an employer encourage employees to telework (i.e., work from an alternative location such as home) as an infection-control strategy during a pandemic?
Yes. The EEOC opines that “Telework is an effective infection-control strategy that is also familiar to ADA-covered employers as a reasonable accommodation. In addition, employees with disabilities that put them at high risk for complications of [a] pandemic may request telework as a reasonable accommodation to reduce their chances of infection during a pandemic.”
During a pandemic, may an employer require its employees to adopt infection-control practices, such as regular hand washing, at the workplace?
Yes. The EEOC indicates that “requiring infection control practices, such as regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal, does not implicate the ADA.”
During a pandemic, may an employer require its employees to wear personal protective equipment (e.g., face masks, gloves, or gowns) designed to reduce the transmission of pandemic infection?
Yes. The EEOC advises that “an employer may require employees to wear personal protective equipment during a pandemic. 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.”
If a vaccine is developed for COVID-19, may an employer compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?
No. The EEOC takes the position that “an employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the . . . vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the . . . vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).