With the current pandemic that has employers everywhere scrambling to understand new laws and government regulations, we wanted to take time to explain how COVID-19 if effecting the Americans with Disabilities Act. The American’s with Disabilities Act (ADA) covers all employers with 15 or more employees, including state and local government. The ADA anti-discrimination laws and reasonable accommodation expectations are strictly enforced by the Equal Employment Opportunity Council (EEOC) and this will not be changing. However, the EEOC will not interfere or prevent employers from following guidelines and suggestions made by the CDC or state/ local health authorities about the steps employers should take to avoid COVID-19.
So, what are those guidelines in regards to the workplace currently?
1) ADA covered employers may ask such employees if they are experiencing influenza-like symptoms, such as fever or chills and a cough or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.
Applying this to current CDC guidance on COVID-19, 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. At the moment these symptoms include: fever, chills, cough, shortness of breath, or sore throat.
2) Usually, measuring an employee’s body temperature is a medical examination and would not be allowed. However, because of COVID-19 the rules regarding measuring body temperature are as follows:
· As of March 2020, employers may measure employees’ body temperature. As with all medical information, the fact that an employee had a fever or other symptoms would be subject to ADA confidentiality requirements. Meaning you can send an employee home for having a temperature but may not share that information with anyone else.
3) In general, you cannot ask questions about what is wrong with someone when they call in sick, however in order to ensure you are keeping everyone safe this has changed for now. How much information may an employer request from an employee who calls in sick?
· Employers may ask employees who call in sick if they are experiencing symptoms of COVID-19. You must strictly stick to the known symptoms of the virus which include: fever, chills, shortness of breath, or sore throat.
4) Can you force an employee to stay home if they are experiencing symptoms of COVID-19?
· Yes. In order to keep everyone safe you can ask employees to stay home if they are experiencing symptoms.
5) Can you require a doctor’s note saying employees are safe to return before they come back in?
· Yes, however you also need to take into consideration that doctors and healthcare workers may be too busy to be giving out doctor’s notes to everyone. Therefore, work with your employee to see if they can be cleared by an urgent care or even get an email sent over from their healthcare provider.
6) Can an employer delay a start date or withdraw a job offer if the prospective employee is experiencing COVID-19 symptoms?
· Yes, although this normally would not be the case you able to do both things. However, you do want to make sure you document everything thoroughly in order to avoid liability.
At the end of the day, this entire situation is uncharted territory. We cannot stress enough how important it is to take a partner in order to ensure you mitigate risk. ALT HR Partners draws on over 20 years of experience and can help you wade through not only ADA, but also the new laws that are being passed regarding employment laws, walking you through layoffs, and helping you map out rules and regulations for your team working from home. We are here to help.
