What the EEOC says that Employers Should Know about the ADA, the Rehabilitation Act, and COVID-19

To protect the rest of its workforce during the COVID-19 pandemic, how much information may an employer request from an employee who calls in sick?

Generally, the law narrowly limits the circumstances in which employers may question employees about their health. But, according to the EEOC, employers may ask employees who call in sick if they are experiencing COVID-19 symptoms, such as fever, chills, cough, shortness of breath, or sore throat. The law’s requirement to keep such information confidential, however, still applies.

May employers take an employee’s body temperature during the COVID-19 pandemic?

Normally, taking an employee’s temperature is a medical examination which employers may perform only when job-related and consistent with business necessity. But, because the Centers for Disease Control and state and local health authorities have acknowledged COVID-19’s community spread and issued attendant precautions, the EEOC states that employers may take employees’ body temperature. Remember, though, that some people with COVID-19 have no fever.

May employers require employers to remain at home if they have COVID-19 symptoms?

According to the EEOC, the answer is “yes”. That response echoes the CDC, which states that employees who become ill with symptoms of COVID-19 should stay away from the workplace. Neither the ADA nor the Rehabilitation Act prevents employers from following that advice.

When employees return to work, may their employer require a doctor’s note that certifies that they are fit for duty?

Again, the answer is “yes”. But, as a practical matter, as the EEOC explains, healthcare providers may be too busy during and immediately after the COVID-19 pandemic to document employee fitness. So, the EEOC suggests that employers consider “new approaches”, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an employee is not infected.

Other Resources

In 2009, during the H1N1 outbreak, the EEOC issued guidance, entitled Pandemic Preparedness in the Workplace and the Americans with Disabilities Act. That guidance remains apposite today and addresses many other questions that employers may have regarding the current pandemic. You can access it here.

This is part of a series of Alerts that address the employment and labor issues implicated by the COVID 19 pandemic. A link to Arent Fox's Coronavirus Task Force is here.