In What You Should Know About the ADA, the Rehabilitation Act, and COVID-19, the Equal Employment Opportunity Commission (EEOC) directly addresses the COVID-19 outbreak. In this release, the EEOC notes that the Americans with Disabilities Act and Rehabilitation Act continue to apply, but do not interfere with or prevent employees from following CDC or state/local public health guidelines. The release refers to Pandemic Preparedness in the Workplace and the Americans with Disabilities Act, prior guidance issued during the 2009 H191 outbreak. This guidance is still relevant today and was updated on March 21, 2020 to address COVID-19 (new information appears in bold).
The following frequently asked questions are addressed in the updated guidance:
How much information may an employer request from an employee who calls in sick, in order to protect the rest of the workforce during the COVID-19 pandemic?
- The guidance states that ADA covered employers may ask such employees if they are experiencing COVID-19 symptoms, which include fever, cough, chills, shortness of breath, or sore throat. Employers must maintain all information about employee illness as a confidential medical record. Another part of the guidance provides that employers may ask an employee why he or she has been absent from work if the employer suspects it is for a medical reason.
Does the ADA allow employers to require employees to stay home if they have COVID-19 symptoms?
- According to the guidance, employees exhibiting symptoms of COVID-19 should leave the workplace. The ADA does not interfere with employers following this advice.
When employees return to work, does the ADA allow employees to require doctors’ notes certifying their fitness for duty?
- Such inquiries are permitted under the ADA. The guidance notes that “[a]s 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.”
May an employer delay the start date of an applicant who has COVID-19 or symptoms associated with it?
- According to current CDC guidance, an individual who has COVID-19 or symptoms associated with the virus 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?
- The guidance provides that “[b]ased on current CDC guidance, this individual cannot safely enter the workplace, and therefore the employer may withdraw the job offer.”