COVID-19 UPDATES: Americans with Disabilities Act Pointers in Managing COVID-19Mar 30, 2020
COVID-19 has forced employers to confront an employee’s right to privacy regarding his or her medical condition and the safety of their workforce and customers. Employers need to be careful that they are not violating any of an employee’s rights under the Americans with Disabilities Act (ADA). For more detailed information, employers should review the EEOC bulletin that was recently updated: https://www.eeoc.gov/facts/pandemic_flu.html.
To protect their employees from potential exposure, employers are permitted to ask employees certain questions to determine if an employee is presenting COVID-19 symptoms or if the employee could have been exposed to the virus, without violating the ADA.
While the ADA prohibits employers from asking disability-related questions or requesting medical examinations unless they are job-related and consistent with business necessity, if an employer has a reasonable belief based on objective evidence that an employee will pose a direct threat due to a medical condition, then disability-related inquiries or medical examinations have generally been viewed as job-related and consistent with business necessity. The Equal Employment Opportunities Commission (EEOC) has confirmed that the COVID-19 pandemic meets the direct threat standard under the ADA. Therefore, employers can ask their employees several questions regarding potential exposure and symptoms without violating the ADA.
Employers can ask employees if they are experiencing any of the symptoms associated with COVID-19, if they have been practicing social distancing, if they have traveled outside of the country or to a highly infected area, and if they have come into contact with someone exhibiting COVID-19 symptoms. Further, an employer can take employees’ temperatures. If an employee displays COVID-19 symptoms, the employer may send the employee home. Employers must keep in mind that standard ADA confidentiality requirements still apply.
Despite the ability to ask questions relating to COVID-19 and to complete related medical examinations, employers must be mindful that other employment laws are still in place. When requiring medical examinations or responses to COVID-19 related questions, employers must be careful that the group of employees examined or questioned will not be viewed as discriminatory. One approach is to require all employees to answer the same questions and complete the same medical examinations. For example, some employers have found that sending a COVID-19 related questionnaire to all employees has helped them to better assess the potential threat of COVID-19 exposure in the workplace.
If you are unsure of what inquiries can be made of employees regarding medical conditions, seek legal counsel.
About the Authors: Meredith Farrell and Kelley L. Stonebraker