On March 19, 2020, the EEOC issued updated guidance on pandemic preparedness to provide guidance related to COVID-19 and its effect on Titles I and V of the American with Disabilities Act (“ADA”) and Section 501 of the Rehabilitation Act. Importantly, the EEOC notes that the ADA and the Rehabilitation Act will not interfere with employers following workplace advice from the Centers for Disease Control and Prevention (“CDC”) or other public health authorities.
Generally, the ADA prohibits employers from requiring a medical examination or inquiring as to whether the employee has a disability or the nature of a disability unless the examination or inquiry is job-related or meets a business necessity. A disability-related inquiry or medical examination of an employee is job-related or meets a business necessity if an employer has a reasonable belief, based on objective evidence, that (1) an employee’s ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition.
Whether a public health emergency or pandemic meets the “direct threat” exception is based on the severity of the illness. An assessment by the CDC or another public health authority provides the objective evidence needed for a disability-related inquiry or medical examination. Based on information from the CDC and other public health authorities, the EEOC declared in its updated pandemic preparedness publication that the COVID-19 pandemic meets the direct threat standard as of March 2020. The EEOC also issued the following guidance:
1.    Employers may send home an employee with COVID-19 or associated symptoms.
2.    If an employee reports feeling ill at work, or calls in sick, the employer may inquire about their symptoms to determine if they have or may have COVID-19.
3.    While checking an employee’s body temperature is considered a medical examination, an employer may measure the body temperature of employees in light of COVID-19. However, whether an employee has a fever or other symptom is subject to ADA confidentiality requirements.
4.    Employers may require infection control practices, such as regular hand washing, proper tissue usage and disposal, and coughing and sneezing etiquette.
5.    An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer (but not pre-offer), as long as the employer applies the screening to all entering employees in the same type of job. This ADA rule allowing post-offer medical inquiries and exams applies to all applicants, whether or not the applicant has a disability.
6.    An employer may delay the start date of an applicant with COVID-19 or associated symptoms.
The guidance from the EEOC, CDC, and other public health authorities is likely to change as the COVID-19 pandemic evolves. Employers should continue to monitor the most current information from the CDC and public health authorities, as it may affect the EEOC’s current guidance.  The attorneys at Chilivis Grubman assist businesses of all types and sizes in connection with employment-related litigation. If you need assistance with such a matter, please contact us today.