March 25, 2020

EEOC Updates Published Guidance for COVID-19 Pandemic Preparedness in Workplace

Holland & Knight Alert
Erika R. Royal | Matthew W. Sloane

Highlights

  • The U.S. Equal Employment Opportunity Commission (EEOC) on March 21, 2020, published updated pandemic guidance originally issued during the H1N1 influenza pandemic in 2009. The updated guidance analyzes proper employer responses to coronavirus (COVID-19) within the protections of the Americans with Disabilities Act (ADA).
  • The updated guidance identifies COVID-19 as a direct threat under the ADA.
  • This Holland & Knight alert addresses some of the key updates within the EEOC's guidance.

Following the outbreak of coronavirus (COVID-19), the U.S. Equal Employment Opportunity Commission (EEOC) updated its published guidance for handling pandemics within the scope of Title I and Title V of the Americans with Disabilities Act (ADA). The new guidance discusses the novel coronavirus and lawful employer responses in the workplace under the ADA.

Specifically, the updated guidance addresses the following questions that employers may have during the COVID-19 pandemic: 1) how much information may an employer request from an employee who calls in sick; 2) may an ADA-covered employer measure the body temperature of their employees; 3) may an employer require its employees to adopt infection-control practices in the workplace; 4) does the ADA allow employers to send employees home; 5) may an employer inquire into an employee's recent foreign travel; and 6) how may an employer adjust their hiring practices in response to the COVID-19 pandemic?

The COVID-19 Pandemic Constitutes a Direct Threat Under the ADA

The ADA generally prohibits employers from discriminating against applicants or employees on the basis of disability. However, the ADA allows employers to exclude individuals from the workplace if they pose a "direct threat" to the health or safety of the themselves or other employees. A direct threat is defined as someone who poses a "substantial risk" to the health or safety of other employees in the workplace that cannot be mitigated or eliminated by reasonable accommodation.

On March 21, 2020, the EEOC declared that the COVID-19 pandemic meets the definition of a direct threat. The EEOC concluded that someone with COVID-19, or symptoms of it, presents a substantial risk to the workplace at the current time. This conclusion allows employers to conduct their due diligence and handle COVID-19-related issues with a degree of lawful discretion. Certain inquiries are still prohibited by law and employers must not run afoul of statutory protections. This Holland & Knight alert provides questions and answers that will assist employers in ensuring that their inquiries and actions are compliant with applicable federal statutes.

How Much Information May an Employer Request from an Employee Who Calls in Sick?

Employers may ask employees who report feeling ill at work, or who call in sick, questions about their symptoms to determine if they have or may have COVID-19. Currently, these symptoms include, but are not limited to, fever, cough and shortness of breath. Employers must ensure that all inquiries of this nature are maintained as confidential medical records in order to remain compliant with the ADA.

May an ADA-Covered Employer Measure the Body Temperature of Their Employees?

Yes. Temperature checks are generally considered a prohibited medical examination by an employer. However, within the context of a widespread community pandemic such as COVID-19, employers are permitted to take employees' body temperatures. The EEOC has stated that such temperature checks are proper because of COVID-19's highly contagious nature within the community. Identical to general medical inquiries, employers must ensure that the results of these body temperature checks are maintained as confidential medical records.

May an Employer Require Its Employees to Adopt Infection-Control Practices in the Workplace?

Yes. Requiring hand washing and utilizing proper etiquette for coughing and sneezing does not implicate the ADA. An employer can also require employees to wear personal protective equipment, such as gloves or masks.

Does the ADA Allow Employers to Send Employees Home?

Yes. An employer can send home an employee with COVID-19 or symptoms associated with the virus. Such action is not considered disability discrimination because COVID-19 has been defined as a direct threat by the EEOC. As an alternative, the EEOC encourages employers to adopt telework measures for employees who must be sent home.

May an Employer Inquire into an Employee's Recent Foreign Travel?

Yes. Normally, this would not be a permitted inquiry. However, if the Centers for Disease Control and Prevention (CDC) recommends that individuals self-quarantine after visiting certain foreign locations during a pandemic, the employer is allowed to inquire whether an employee traveled to one of those regions for business or personal reasons. The CDC maintains a list of countries for which it recommends a 14-day self-quarantine upon return to the United States. The current list is available on the CDC website.

How May an Employer Adjust Their Hiring Practices in Response to the COVID-19 Pandemic?

The ADA generally prohibits all pre-offer medical inquiries and exams even during a pandemic. However, an employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer. An employer may also take an applicant's temperature as part of a post-offer, pre-employment medical exam. If a new hire has COVID-19 symptoms or is a diagnosed case, employers can delay the start date or rescind the job offer because they are a direct threat to the health or safety of the workplace.

Next Steps

Employers should remain diligent with protecting their workplace. Continue to monitor the EEOC website for further guidance on potential ADA implications. For more information or assistance on this topic, please contact the authors or another member of Holland & Knight's Labor,  Employment and Benefits Group.

DISCLAIMER: Please note that the situation surrounding COVID-19 is evolving and that the subject matter discussed in these publications may change on a daily basis. Please contact the author or your responsible Holland & Knight lawyer for timely advice.


Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.


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