The Americans with Disabilities Act and COVID-19
The Equal Employment Opportunity Commission (EEOC) issued guidance, with a focus on employer obligations under the Americans with Disability ACT (ADA), in the wake of COVID-19.
Can employers ask employees about COVID-19 symptoms?
Yes. Employers covered by the ADA may ask employees if they are experiencing symptoms of COVID-19—specifically, symptoms such as fever, chills, cough, shortness of breath, or sore throat. Employers should rely on the CDC guidance on emerging symptoms associated with COVID-19, which can guide employers when choosing questions to ask employees to determine whether they pose a direct threat to health in the workplace.
When employees return to work, the ADA also allows employers to require a doctor’s note certifying the employee’s fitness for duty. 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.
Must employers keep medical information confidential?
Yes. The ADA requires that all medical information about a particular employee be stored separately from the employee’s personnel file, thus limiting access to this confidential information. Information related to COVID-19 may be stored in the employee’s existing medical file. This includes an employee’s statement that he has the disease or suspects he has the disease, or the employer’s notes or other documentation from questioning an employee about symptoms. Notably, an employer may disclose the name of an employee to a public health agency when it learns the employee has COVID-19. Temporary staffing agencies or contractors that place employees in the workplace may also notify the employer if it learns the employee has COVID-19.
Can employers screen job applicants for COVID-19?
Yes. Employers covered by the ADA may screen job applicants for 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 disability. Moreover, medical exams are permitted after an employer has made a conditional offer of employment. If an individual has COVID-19 or symptoms associated with the virus, the employer may delay the start date of the job applicant. In addition, if the employer needs the job applicant to start immediately, but the individual has COVID-19 or associated symptoms, the employer may withdraw the job offer because this individual cannot safely enter the workplace. However, employers may not postpone the start date or withdraw a job offer because the individual is 65 years old or pregnant, both of which place them at a higher risk from COVID-19. The employer may, however, choose to allow the individual to work remotely or to discuss whether they would like to postpone the start date.
Must employers consider appropriate reasonable accommodations in the wake of COVID-19?
Yes. Employees with disabilities may request altered, or new, reasonable accommodations due to COVID-19. Employers must generally approach these requests as they would any other reasonable accommodation request. For employees who must report to the workplace to perform their duties, employers should consider reasonable, temporary accommodations to reduce their exposure to COVID-19. If an employer has imposed mandatory teleworking, the employer may prioritize requests for reasonable accommodations needed while teleworking. However, if an employee requests an accommodation that will only be needed after mandatory teleworking ends, the employer should still consider this request and may make arrangements to implement the accommodation where appropriate.
Can employers take steps to reduce and address workplace harassment that may arise as a result of COVID-19?
Yes. Employers should reduce the chance of harassment by explicitly communicating to employees that fear of the COVID-19 pandemic should not be misdirected toward individuals because of a protected characteristic, including national origin and race.
Parker Daniels Kibort has one of the top labor and employment practices in the State of Minnesota. For more information on this topic or for help with related inquires, contact the Parker Daniels Kibort labor and employment team at 612.355.4100.