The workplace is changing in light of this world pandemic, but the Equal Employment Opportunity Commission (“EEOC”) has made it clear that all anti-discrimination laws, including the Americans with Disabilities Act (“ADA”), still apply to covered employers. The ADA prohibits discrimination against individuals with disabilities in several areas including employment. While antidiscrimination laws are still in effect, during a pandemic, employers are not prevented from following guidance from public health authorities including the Centers for Disease Control and Prevention (“CDC”).
In 2009, during the H1NI pandemic, the EEOC issued significant guidance related to what employers may do to protect employees and how to navigate the ADA during a pandemic. It recently updated this guidance in response to COVID-19.
To protect its workforce, employers are permitted to ask employees if they are experiencing symptoms. Employers may rely on symptoms provided by the CDC and public health authorities. For instance, fever, chills, cough, shortness of breath, and sore throat are published symptoms of COVID-19. During a pandemic, employers are also authorized to take an employee’s body temperature. But employers must remember that the ADA requires that all medical information about an employee be kept separate from the employee’s personnel file. Accordingly, any information an employer obtains related to COVID-19 must be kept in the employee’s separate medical file. If an employer maintains a log of daily body temperature results it must maintain the confidentiality of this information.
The CDC has stated that employees who become ill with symptoms of COVID-19 should leave the workplace. The EEOC has made clear that the ADA does not prevent employers from following this advice.
During a pandemic if an employee requests an accommodation related to the pandemic for a medical condition, either at home or in the workplace, an employer may ask questions or request medical documentation to determine if the employee has a disability as defined by the ADA. Employers are cautioned not to ask questions or request medical documentation about obvious or already known disabilities. It is important to note that the ADA still applies to critical and essential workers so employers receiving requests for reasonable accommodation under the ADA from employees designated as critical or essential workers by the CDC must accept and process the requests as they would for any other employee. The granting of the request will depend on whether the worker is an individual with a disability and whether there is a reasonable accommodation that can be provided absent undue hardship.
Employers should not ask employees without symptoms if they have an underlying condition that would make them more vulnerable to the virus. Without symptoms, this is a disability inquiry that is prohibited by the ADA. Employers should not assume every person with a disability is at an increased risk as not every disability will increase a person’s risk of complications related to COVID-19.
Employers should continue to monitor changing guidance from both the EEOC, the CDC, and other public health authorities as the COVID-19 pandemic evolves. As no set of guidelines can encompass this rapidly changing and unprecedented situation employers should seek legal advice for fact specific questions.
This article is authored by attorney Kimberly P. Peil at Hoeppner Wagner & Evans LLP. Kim practices Employment and Litigation law.
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