Member Article

The Equal Employment Opportunity Commission (EEOC) has issued guidelines to help employers avoid violating the Americans with Disabilities Act (ADA) as they scramble to address the impact of COVID-19 on their employees and businesses.

The EEOC guidance is a reminder that employee privacy and health protections under the ADA continue to apply even in the midst of a global pandemic. The EEOC guidance, however, notes that some rules and procedures that might otherwise raise ADA concerns may be permissible under the circumstances:

• Employers may ask employees if they are experiencing symptoms of COVID-19 (fever, chills, cough, shortness of breath, or sore throat), but should be careful to ensure that questions are tailored to determining whether the employee may be ill with COVID-19 and do not relate to other health conditions. Any information obtained by employees should be treated as confidential and maintained in the employee’s separate medical files.
  
  
• Employers may measure employees’ body temperature.
  
  
• Employers may require employees with symptoms of COVID-19 to leave the workplace.
  
  
• Employers may inform fellow employees of their possible exposure to COVID-19, but should not identify the affected employee or provide any identifying information (such as department, job title, or work location).
  
  
• Given the overwhelming demands on healthcare providers, employers may consider accepting less formal acknowledgment confirming that the employee does not have COVID-19.
  
  

The EEOC guidance also addresses new applicants both during the application process and after an offer is made but before they start work:

• Employers may screen job applicants for symptoms of COVID-19 after making a conditional job offer. Any such screening should be performed uniformly on all applicants.
  
  
• Employers may measure an applicant’s body temperature before they start work as part of their pre-employment medical screening.
  
  
• Employers may delay the start date of an applicant who has symptoms of COVID-19, or withdraw the job offer altogether because the individual cannot safely enter the workplace.
  
  

The EEOC guidance acknowledges the difficulty that employers will face in balancing the need to keep employees safe and healthy while respecting employee privacy. Employers should continue to follow the recommendations of all federal, state, and local health authorities, but to be mindful that the requirements of the ADA even in a time of crisis.

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