The EEOC just published an email about ADA and the
Rehabilitation Act and their application to COVID-19. Here are some highlights
with the full text below:
- Employers may ask if employees are experiencing symptoms. Information about employee illness must be maintained as confidential health information.
- Employers are permitted to require employees with symptoms of COVID-19 to stay home and may require a doctor’s note to return.
- If an employer is hiring, they may screen for symptoms as long as they screen all applicants.
- Employers may withdraw a job offer if the applicant has symptoms and is unable to start on the date of hire.
You Should Know About the ADA, the Rehabilitation Act, and COVID-19
- The EEOC enforces workplace
anti-discrimination laws including the Americans with Disabilities Act
(ADA) and the Rehabilitation Act, including the requirement for reasonable
accommodation and rules about medical examinations and inquiries.
- The ADA and Rehabilitation Act
rules continue to apply, but they do not interfere with or prevent
employers from following the guidelines and suggestions made by the CDC or
state/local public health authorities about steps employers
should take regarding COVID-19. Employers
should remember that guidance from public health authorities is likely to
change as the COVID-19 pandemic evolves. Therefore, employers should
continue to follow the most current information on maintaining workplace
- The EEOC has provided guidance
(a publication entitled Pandemic Preparedness in the Workplace and the
Americans With Disabilities Act), consistent with these
workplace protections and rules, that can help employers implement strategies
to navigate the impact of COVID-19 in the workplace. This pandemic
publication, which was written during the prior H1N1 outbreak, is still
relevant today and identifies established ADA and Rehabilitation Act
principles to answer questions frequently asked about the workplace during
- The World Health Organization
(WHO) has declared COVID-19 to be an international pandemic. The EEOC
pandemic publication includes a separate section that answers common
employer questions about what to do after a pandemic has been declared.
Applying these principles to the COVID-19 pandemic, the following may be
- How much information may an employer request from
an employee who calls in sick, in order to protect the rest of its
workforce during the COVID-19 pandemic?
- During a pandemic,
ADA-covered employers may ask such employees if they are experiencing
symptoms of the pandemic virus. For COVID-19, 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. 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
to stay home if they have symptoms of the COVID-19?
- 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
- When employees return to work, does the ADA allow
employers to require doctors’ notes certifying their fitness for duty?
- Yes. Such inquiries are
permitted under the ADA either because they would not be
disability-related or, if the pandemic influenza were truly severe, they
would be justified under the ADA standards for disability-related
inquiries of employees. As a practical matter, however, doctors and
other health care professionals may be too busy during and immediately
after a pandemic outbreak 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 e-mail to certify that an
individual does not have the pandemic 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
- 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 who
has COVID-19 or symptoms associated with it?
- Yes. According to
current CDC guidance, 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?
- Based on current CDC
guidance, this individual cannot safely enter the workplace, and
therefore the employer may withdraw the job offer.